SUE CHIMENTO v. ARTHUR GALLAGHER CO GALLAGHER BENEFIT SERVICES INC SCOTT McCOY (2026)

1 Defendants Arthur J. Gallagher & Co. (AJG), Gallagher Benefit Services, Inc. (Gallagher Benefit, or collectively Gallagher or Gallagher Defendants) and Scott McCoy appeal a judgment awarding Plaintiff Sue Chimento actual and punitive damages on her claim for malicious prosecution, as well as the denial of their motion for judgment notwithstanding the verdict, remittitur and new trial. Chimento sued Defendants on multiple theories, but not for malicious prosecution. She denied pursuing that theory repeatedly throughout the course of litigation. Defendants assert that the trial court abused its discretion by allowing Chimento to add that claim after the close of evidence at trial. Defendants also assert that Chimento failed to present evidence that an underlying criminal charge was terminated in her favor, necessary to support her malicious prosecution claim. We find the trial court abused its discretion by allowing Chimento to add her claim to Defendants’ prejudice at trial. Alternatively, Chimento failed to demonstrate a prima facie claim for malicious prosecution because she presented no evidence of a termination of the underlying matter in her favor. The trial court erred as a matter of law by denying directed verdict and judgment notwithstanding the verdict. We direct the trial court to enter judgment in Defendants’ favor on that claim. We also vacate the award of punitive damages awarded to Chimento collectively on all three of her theories against the Gallagher Defendants and remand to the trial court for further proceedings to determine what amount of punitive damages Chimento may recover from the Gallager Defendants on her claims for tortious interference with a contract and tortious interference with a prospective economic advantage.

2 Defendant Scott McCoy also appeals the judgment against him on Chimento's claims for actual and constructive fraud, asserting the award is not supported by competent evidence and permits Chimento a double recovery. We find the jury's verdict is supported by competent evidence and affirm that judgment. Additionally, McCoy failed to establish that the jury's verdict on actual and constructive fraud solely concerned the same conduct and the same injury. Accordingly, we decline to reduce that judgment.  ¹

BACKGROUND

3 McCoy once owned an insurance agency. Chimento was McCoy's long-time associate and employee. In 2016, McCoy sold his agency to Gallagher Benefit, a subsidiary of AJG. This case arises from a dispute or disagreement about what compensation McCoy promised Chimento to accompany him and work at Gallagher.

4 When Chimento worked at McCoy's agency, she received significant commissions on products sold. Chimento claimed that she was an integral part of McCoy's business. She contended that the Gallagher Defendants would not close the deal unless she was on board and that McCoy promised to pay her 15% of the purchase price he received for the agency, or $300,000, to lure her to Gallagher. She also asserted that McCoy promised to continue paying her 15% commissions above her flat salary. McCoy claimed that he never promised Chimento part of the purchase price and that she was aware before the sale closed that Gallagher did not pay commissions. He testified that, instead, he negotiated her flat salary to include commissions she was losing by moving to Gallagher.

5 After the sale, Chimento became angry that she was not or would not receive commissions and/or had not received the purchase price. McCoy contends that to appease Chimento, he paid her $40,000 up front and was attempting to develop a structure for her to earn additional sums. During this same period, Defendants alleged Chimento wrote checks in excess of $50,000 to herself or her husband's business, Dynamic Prosthetics & Orthotics, LLC, from a Gallagher account, which they reported to police. Defendants appear to have contended that Chimento wrote those checks in payment of the commissions she thought she should be paid. Police investigated the claims, the district attorney filed charges, the district court issued a warrant and Chimento was arrested. Chimento left during the investigation to form her own agency. The charges were later dismissed.  ²

6 In September 2018, Chimento filed this action against Defendants, alleging that McCoy had falsely promised her certain compensation and that Defendants had attempted to damage her personally and professionally by having her arrested and making false statements about her to third parties, including potential or existing customers. Her First Amended Petition in October 2018 asserted specific claims for libel and slander, false light invasion of privacy, negligence, intentional interference with business relations, fraud, constructive fraud and conspiracy and sought actual and punitive damages.  ³

7 Though Chimento alleged from the inception of the action that her arrest was wrongful, she never expressly asserted a malicious prosecution claim. Over the course of the litigation, Chimento's counsel had been instructed by the court to file a motion to amend if she intended to assert that claim. She never did so and denied she wished to assert that claim repeatedly in transcribed hearings and pleadings. Chimento did not attempt to add a malicious prosecution claim until just before trial. The trial court did not grant leave to add that claim until after the close of evidence, over Defendants’ objection.

8 The parties proceeded to jury trial on October 2 through 10, 2023.  ⁴ At trial, Chimento and McCoy offered conflicting testimony regarding the compensation she had been promised, among other issues, including the basis for Defendants’ claim Chimento had embezzled funds. Chimento also presented evidence and testimony that Defendants had reported her to police and that she was arrested. Though she and other witnesses acknowledged during testimony that the criminal case against her had been dismissed, neither Chimento nor any witness offered any testimony or evidence whether the dismissal was with or without prejudice on the merits or otherwise in her favor.

9 The jury found in Chimento's favor against each Defendant for her claims of tortious interference with a contract and tortious interference with a prospective economic advantage and awarded actual damages not at issue in this appeal.  ⁵ The jury also found in Chimento's favor on her claims of actual and constructive fraud against McCoy and awarded $130,000 on each claim. It found in favor of Chimento on malicious prosecution, awarding money damages as follows:

Scott McCoy $617,280.00 plus prejudgment interest of $15,602.36

Arthur J. Gallagher & Co. $2,263,360.00 plus prejudgment interest of $57,326.91

Gallagher Benefit Services, Inc. $2,263,360.00 plus prejudgment interest of $57,326.91

The jury awarded Chimento a collective award of punitive damages against AJG in the amount of $3,000,000 and against Gallagher Benefit in the amount of $1,000,000.  ⁶ Though the jury found that AJG and Gallagher Benefit acted intention-ally and with malice on both tortious interference claims, as well as the malicious prosecution claim, the award of punitive damages to each defendant was a single sum not apportioned among theories.

10 After judgment, Defendants moved for judgment notwithstanding the verdict, remittitur and new trial. Pertinent here, they asserted that they had been prejudiced by the late assertion of the malicious prosecution claim; that Chimento had not met her burden to demonstrate the elements of that claim; that she was not entitled to prejudgment interest on her malicious prosecution claim; that she should not receive punitive damages on the malicious prosecution claim she failed to prove or those damages should be reduced and that the fraud judgment against McCoy was not supported by competent evidence. Defendants’ motions were denied.

11 Defendants appeal.

STANDARD OF REVIEW

12 This appeal raises errors concerning amendment of pleadings and claims during trial, introduction of evidence, the denial of a motion for directed verdict, denial of judgment notwithstanding the verdict and several questions of law.

13 We review a trial court's grant of leave to amend pleadings for an abuse of discretion. Prough v. Edinger, 1993 OK 130, 8, 862 P.2d 71. “An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Spencer v. Okla. Gas & Elec. Co., 2007 OK 76, 13, 171 P.3d 890(emphasis omitted) (footnote omitted). We review questions of law de novo, without deference to the trial court. Pletcher v. State ex rel. Dept. of Pub. Safety, 2003 OK 117, 3, 84 P.3d 725.

14 Likewise, we review the denial of a motion for directed verdict de novo. A motion for directed verdict presents “the question of whether there is any evidence to support a judgment for the party against whom the motion is made.” Woods v. Fruehauf Trailer Corp., 1988 OK 105, 8, 765 P.2d 770. In ruling on such a motion, a trial court must consider as true all the evidence and all the inferences reasonably drawn therefrom that are favorable to the party opposing the motion. Id. “[A]ny conflicting evidence favorable to the movant must be disregarded.” Id.

15 Similarly, on a motion for judgment notwithstanding the verdict, the trial court considers all evidence favorable to the nonmoving party and disregards all evidence favorable to the movant. Ellison v. Campbell, 2014 OK 15, 12, 326 P.3d 68. We apply the same standard to the trial court's judgment. Id.

16 However, “[i]n an action at law, a jury verdict is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, this Court will not disturb the jury's verdict or the trial court's judgment based thereon.” Florafax Int.l, Inc. v. GTE Mkt. Res., Inc., 1997 OK 7, 3, 933 P.2d 282(citations omitted).

ANALYSIS

17 Defendants do not appeal the entire judgment but appeal the malicious prosecution verdict and related propositions of error. Additionally, McCoy appeals the fraud judgment against him.

A. Malicious prosecution

1. Leave to amend

18 Defendants assert that Chimento had long since waived her malicious prosecution claim and should have been estopped from adding it during trial. They also assert Chimento failed to demonstrate good cause for adding the malicious prosecution claim and that they were prejudiced by Chimento's delay. Thus, they assert the trial court abused its discretion by allowing the claim to go forward.

19 “The policy of the law is that all issues in a case must be identified in a seasonable manner.” Corman v. H-30 Drilling, Inc., 2001 OK 92, 13, 40 P.3d 1051. “The purpose of this requirement is to avoid trial-by-ambush, in which a party is surprised and then not given a reasonable time to effectively defend itself.” Id. Thus, though leave to amend pleadings is freely granted and within the trial court's discretion, it is also well within the trial court's discretion to deny leave to amend for reasons such as undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by prior amendments, undue prejudice or futility of amendment. See Prough, 1993 OK 130, at 9. We agree with Defendants that the trial court's grant of leave to amend had no rational basis in the law or evidence and was a clear abuse of discretion.

20 This case has a long procedural history. It was filed in 2018, five years before trial. Chimento alleged her arrest was wrongful in the original Petition but did not expressly assert a malicious prosecution theory. In March 2019, Chimento's counsel claimed during a hearing that she had a “malicious prosecution cause of action and an abuse of process cause of action that we believe are justified by the facts of this case.” However, counsel also acknowledged permission was required to amend Chimento's petition and attempted to procure it orally during the hearing. The trial court directed that it required a motion to amend in writing to allow Defendants to respond. Chimento never filed a written motion to amend to assert those claims or any other.

21 In February 2021, the parties appeared before the court on a series of motions concerning drafts of a pretrial conference order. In particular, Defendants objected to claims Chimento inserted into the draft conference order that they asserted were never pled--“malicious wrong,”  ⁷ intentional infliction of emotional distress and tortious interference with a competitive advantage. The draft pretrial order Chimento had proposed at that time made no mention of malicious prosecution. At the hearing, Defendants reminded the trial court of its previous direction that Chimento file any motion to amend in writing. Chimento's counsel argued that direction pertained only to a malicious prosecution claim and did not require her to do so with her three newest theories. Her counsel also expressly denied Chimento was pursuing a malicious prosecution claim:

We weren't talking about other claims. We were talking about a malicious prosecution claim. And we didn't -- we didn't choose to file a malicious prosecution claim. I don't believe we alleged one ever in our original Petition. We didn't want to add one. But these other claims, I think are fairly alleged ․  8

(Emphasis added).

22 In a hearing in October 2021, Chimento's counsel advised the court that “we have three causes of action in this case. We have an intentional interference with economic advantage or prospective business, we have a fraud claim, and a conspiracy claim.” Counsel made no mention of a malicious prosecution claim.

23 As noted, a Pretrial Conference Order was first entered on February 26, 2021. However, trial was delayed pending an interlocutory appeal to the Oklahoma Supreme Court. In that appeal, No. 120,089, Chimento expressly represented to the Oklahoma Supreme Court in her appellate briefing that “Chimento elected for strategic reasons not to make a claim for malicious prosecution.” (Emphasis original).

24 When the case returned from the Supreme Court, the parties conducted a planning conference in August 2023, where the parties agreed that it would be necessary to amend the previous Pretrial Conference Order, filed before the interlocutory appeal, to address intervening events, including removing voluntarily dismissed claims and issues raised in the Oklahoma Supreme Court's opinion in the interlocutory appeal. However, Chimento never mentioned an intent to add malicious prosecution.

25 Despite repeatedly denying an intent to pursue a malicious prosecution claim, Chimento slipped a malicious prosecution instruction into her proposed jury instruction two weeks before the October 2023 trial. Chimento also appears to have attempted to include malicious prosecution as a claim in the Amended Pretrial Order.  ⁹ Her counsel claimed at trial that the insertion was justified because malicious prosecution or facts supporting it had been pled in her Petition and Amended Petition in 2018 under notice pleading standards. As noted above, the trial court never ruled on whether Chimento would be permitted to assert and submit that claim to the jury until the close of evidence.

26 Defendants correctly argue that Chimento's tactics effectively sidestepped any discovery period on her malicious prosecution claim. They also avoided the dispositive motion deadline and deprived Defendants of an opportunity to brief the law applicable to Chimento's claim before the trial. Perhaps more significantly, Chimento's repeated denial of a malicious prosecution claim would have impacted Defendants’ ability to prepare for trial and how it conducted the trial through identification of which evidence and witnesses they would need to present to refute such claims.

27 Chimento never supplied good cause for her eleventh-hour attempt to add a malicious prosecution claim after repeatedly denying she was pursuing it, other than counsel's inaccurate claim that she had given adequate notice of that claim in her petition.  ¹⁰ The record supports the sole conclusion that Chimento's counsel engaged in a calculated and improper trial-by-ambush. Oklahoma jurisprudence supplies multiple reasons the trial court should have exercised its discretion to refuse leave to amend in that circumstance, including undue delay, bad faith, dilatory motive and repeated failure to cure deficiencies by prior amendment. See Prough, 1993 OK 130, 862 P.2d 71.  ¹¹

28 Further, these tactics would clearly have prejudiced Defendants at trial. One need only look to Chimento's arguments on appeal to reach that conclusion: she argues that the malicious prosecution judgment should not be reversed on the merits because she purportedly proved a prima facie malicious prosecution claim which Defendants failed to refute with evidence. Assuming momentarily that this is a correct exposition of the law, Defendants could hardly defend and refute a claim they had been repeatedly advised was not pending until after the close of evidence. This argument would have more merit had Defendants known with certainty Chimento would be permitted to pursue a malicious prosecution claim when they conducted discovery, identified their witnesses and evidence for trial or perhaps when they examined witnesses at trial.

29 As Defendants point out in their appellate briefing, had they known throughout the case that they were defending malicious prosecution at trial, they would have introduced additional witnesses, including an expert, to address matters specific to the malicious prosecution claim, such as probable cause for pursuing a criminal charge or the extent of reputational damages Chimento claimed under this theory. In sum, the prejudice worked upon Defendants’ preparation and defense of this claim is clear.

30 We find no merit in Chimento's arguments that she was entitled to have the pleadings or legal theories presented to the jury conform to the evidence. Chimento (through counsel) unmistakably and repeatedly represented to the trial court and Defendants that she was not pursuing a malicious prosecution claim at trial.  ¹² She is not entitled to benefit from such subterfuge and/or express and knowing waiver of her claim.

31 Likewise, Chimento's argument that Defendants are not entitled to relief because they did not seek a continuance holds no weight here. Chimento suggests that this claim was added before trial merely because she slipped the claim into the Amended Pretrial Conference Order. While Chimento did attempt to include that claim, Defendants clearly objected to its inclusion.  ¹³ It is clear from the record that Defendants had not agreed the claim would go forward and that this issue remained to be resolved by the trial court. The trial court made no ruling that the claim could go forward until Defendants’ motions for directed verdict at the close of evidence. We do not find that Defendants are obligated to seek an anticipatory continuance to avoid prejudice which, until that ruling was made, was not certain to occur.

32 For these reasons, we find the trial court abused its discretion by allowing Chimento to amend and pursue her malicious prosecution claim at trial. This reason alone requires us to reverse the judgment in favor of Chimento on her malicious prosecution claim and direct judgment be entered in favor of Defendants on this claim. Alternatively, we find Chimento failed to meet her burden on that claim in the first place.

2. Insufficient evidence

33 Defendants also assert the trial court committed reversible error by denying their Motion for Directed Verdict as well as their Motion for Judgment Notwithstanding the Verdict on Chimento's malicious prosecution claim. They argue Chimento failed to demonstrate the criminal charges against her were dismissed in her favor. Again, we agree.

34 In a civil claim for malicious prosecution based on the filing of criminal charges:

[t]he elements entering into and necessary to be shown in a suit for damages for malicious prosecution are: (1) That the prosecution was commenced against plaintiff; (2) that it was instituted or instigated by defendant; (3) that it was malicious; (4) that it has been legally and finally terminated in plaintiff's favor; (5) that it was without probable cause.

Park v. Sec. Bank & Tr. Co., 1973 OK 72, 29, 512 P.2d 113(citation omitted) (emphasis added). See also Oklahoma Uniform Jury Instruction No. 16.1 (OUJI Rev. 2014); Page v. Rose, 1975 OK 176, 12, 546 P.2d 617.

35 Though the parties do not dispute that Chimento's charge was dismissed, they dispute whether anything more than a dismissal is required and/or what constitutes a legal and final termination in Plaintiff's favor. Defendants argue that the charges were dismissed without prejudice, which cannot support a malicious prosecution claim, primarily citing Glasgow v. Fox, 1988 OK 71, 757 P.2d 836, and Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895. These cases set forth the general and long-standing Oklahoma law that a dismissal not on the merits cannot support a malicious prosecution claim.

36 Chimento argues, in part, that a dismissal without prejudice could support a malicious prosecution claim in the right circumstance, citing Cole v. Bank of America, N.A., 2022 OK 96, 521 P.3d 800. In Cole, the Court recognized that Glasgow does not expressly hold that a dismissal without prejudice “is never a successful termination of a prior action in the context of malicious prosecution claim.” Id. at 13. However, Cole concerned a unique fact pattern. A defendant/ eventual malicious prosecution plaintiff succeeded on the merits of his appeal of the underlying case. However, when the underlying case was remanded for further proceedings, the plaintiff/eventual malicious prosecution defendant dismissed it without prejudice. Later, that defendant argued plaintiff's malicious prosecution claim failed for lack of a termination of the underlying action on the merits based on that dismissal without prejudice.

37 Under these facts, the Court held the dismissal could support the malicious prosecution claim because plaintiff had actually prevailed on the merits, notwithstanding the dismissal. Id. at 14. The Court stated that “[w]e apply a case-by-case determination as to whether the dismissal in the original action is a ‘successful termination’ and shows the plaintiff to be without fault.” Id. at 11. “Factors we consider in making this determination include whether substantive rights of the cause of action were previously determined and whether defendant was vindicated.” Id. (citing Glasgow, 1988 OK 71, 15). Nothing in Cole eliminates these requirements, i.e., a merits determination of some sort. See U.S. Nat'l Assoc. v. Hill, 2023 OK 86, 20 n.3, 540 P.3d 1.

38 Here, Chimento did not admit any order or evidence of the dismissal, or why it was dismissed, though her briefing appears to admit the dismissal was without prejudice.  ¹⁴ While a dismissal without prejudice might still support a claim under the right facts, Chimento bore the burden to establish those facts existed, i.e., to demonstrate that the case was legally and finally terminated in her favor. She did not meet that burden because she presented no evidence of the dismissal or its basis.

39 Rather, Chimento offers two other arguments. One, she contends that any voluntary dismissal by the district attorney would support a prima facie case. Two, she asserts that an order of expungement supports her claim.

40 With respect to Chimento's prima facie case, Chimento contends that any “voluntary abandonment or dismissal” of the case by a prosecutor “is such a termination of the proceedings as will support an action for malicious prosecution,” citing Empire Oil & Refining Co. v. Cambron, 1935 OK 508, 44 P.2d 972.

41 In Empire Oil, the Court did state:

The voluntary abandonment or dismissal of a criminal action by the complaining witness or the county attorney, without the procurement of defendant, is such a termination of the proceeding as will support an action for malicious prosecution; and proof thereof is prima facie evidence of the want of probable cause for instituting the prosecution.

Id. at 7. Thus, if Empire Oil is good law, one might read it to support prima facie elements of dismissal and lack of probable cause. However, the principle set forth in Empire Oil was rejected a year later in Champlin Refining Co. v. Le Force, 1936 OK 14, 54 P.2d 190. In that case, the Court noted its decision in Empire was “decidedly against the weight of the authority,” stating:

An abandonment of the prosecution by the complaining witness, a discontinuance at the instance of the prosecuting attorney, a dismissal by the magistrate or court without a hearing of all the evidence, and other similar terminations of a criminal proceeding whereon an action of malicious prosecution has been based have been variously spoke of as constituting no evidence of want of probable cause, raising no presumption thereof, establishing no prima facie case of lack of probable cause, being insufficient to prove want of probable cause, etc. The weight of authority is in this direction.

Id. at 194 (citation omitted). If a voluntary dismissal does not give rise to a presumption of lack of probable cause, we fail to see how a voluntary dismissal alone could support a prima facie claim or the necessary element that the dismissal be a legal and final termination in a malicious prosecution plaintiff's favor. Moreover, we find no authority since Empire Oil which suggests that in Oklahoma, a civil action for malicious prosecution applies any time a prosecutor voluntarily dismisses a case. Certainly, the amount of litigation to result from such a rule, if it exists, would have generated ample case law for consideration. We find none. Likewise, we find no authority which shifts the burden to Defendants to refute or disprove the dismissal was in Chimento's favor, as she suggests. The more recent authority above clearly requires the malicious prosecution plaintiff to provide proof of a final, legal determination of the criminal matter to support her claim. A voluntary dismissal, without more, clearly does not meet that requirement.  ¹⁵

42 Chimento also argues she met her burden by presenting an order of expungement under 22 O.S. Supp. 2016, § 18.  ¹⁶ Chimento testified her criminal charge had been expunged and introduced the order of expungement over Defendants’ objection. That order reflects that the district court granted an order of expungement pursuant to section “18(7),”  ¹⁷ which authorizes a person to seek expungement if within the following category:

7. The person was charged with one or more misdemeanor or felony crimes, all charges have been dismissed, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person, and the statute of limitations for refiling the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be refiled; provided, however, this category shall not apply to charges that have been dismissed following the completion of a deferred judgment or delayed sentence.

(Emphasis added). According to the Order, Chimento's charge was expunged because the statute of limitations on her claim had run or the state did not intend to refile.  ¹⁸ Nothing in section 18, or under 18(A)(7) suggests that expungement is a legal and final determination on the merits of the criminal charge. In fact, section 18 provides for expungement in some instances, even if the defendant was convicted. More importantly, Chimento presented no authority on appeal or below that suggests an expungement based on statute of limitations or a prosecutor's decision not to refile is evidence of a favorable termination in her favor on the merits to support a malicious prosecution claim.

43 In sum, we find that the trial court abused its discretion by allowing Chimento to amend. Even so, Chimento failed to establish every element necessary to support her malicious prosecution claim, and the trial court erred as a matter of law by failing to grant Defendants a directed verdict and judgment notwithstanding the verdict. We reverse with instructions to the trial court to enter judgment in favor of Defendants on Chimento's malicious prosecution claim. Because we reverse that judgment, we do not address Defendants’ proposition of error that Chimento is not entitled to prejudgment interest.

B. Punitive damages

44 Because we reverse the judgment on the malicious prosecution award, we consider Defendants’ assertion that we must vacate punitive damages awarded by the jury.

45 At trial, the jury awarded separate actual damages against each Defendant on Chimento's claims for tortious interference with a contract, tortious interference with prospective economic advantage and malicious prosecution. On each, the jury found the Defendants acted intentionally and with malice. However, the jury was provided with a single second-stage verdict form and awarded one amount of punitive damages against each Defendant for all three claims.

46 If we remove the malicious prosecution claim from the award, the punitive damage award against AJG now exceeds the permissible cap of $500,000 or twice the actual damages. See 23 O.S.2021, § 9.1.  ¹⁹ Further, punitive damages must bear some relation to the cause and extent of injuries. See Rodebush by & through Rodebush v. Oklahoma Nursing Homes, 1993 OK 160¸ 21, 867 P.2d 1241. However, the actual damages awarded against both Gallagher Defendants are now significantly reduced. Additionally, the jury's calculation of punitive damages rests on considerations such as the seriousness of a defendant's misconduct, the profitability of that misconduct, duration and concealment, the degree of a defendant's awareness of the hazard and its excessiveness, as well as the attitude of the discovery of the misconduct or hazard. See 23 O.S.2021, § 9.1(A). Yet, a significant portion of the evidence at trial concerned misconduct which Chimento failed to prove was actionable. Given the reversal of the malicious prosecution claims and the significant reduction in actual damages as a result, the award of punitive damages is reversed and remanded for new trial to determine the amount of punitive damages on Chimento's claims for tortious interference with a contract and tortious interference with prospective economic advantage against the Gallagher Defendants.  ²⁰ See generally Hicks v. Central Okla. United Methodist Retirement Facility Inc., 2017 OK CIV APP 23, 35, 423 P.3d 684.

47 On remand, the only issue to be retried is the amount of punitive damages awarded, i.e., second-stage punitive damages, on Chimento's tortious interference claims. Neither party may revisit or retry liability for or the amount of Chimento's actual damages on her tortious interference claims or the issue of whether Defendants’ conduct was intentional and malicious. Chimento is precluded from attempting on remand to amend and add any new claims or legal theories arising from the transaction or series of transactions giving rise to this action and/or which could or should have been raised and tried in this case. The parties are limited to evidence presented at the original trial, with the exception that the parties may request the trial court exclude evidence or arguments pertaining only to the malicious prosecution claim, if any. With these instructions, we reverse the trial court's judgment awarding Chimento punitive damages against Gallagher Benefit and AJG and remand for a new trial on the amount of punitive damages to be awarded on Chimento's claims for tortious interference with a contract and tortious interference with prospective economic advantage only.

C. Fraud claim against Scott McCoy

48 McCoy asserts the judgment for actual and constructive fraud against him was not supported by competent evidence, and thus the trial court erred by denying a directed verdict or judgment notwithstanding the verdict.

49 To prove her fraud claim, Chimento was required to present clear and convincing evidence of “an intentional deception,” such as “[a] promise made without any intention of performing it.” Sutton v. David Stanley Chevrolet, 2020 OK 87, 10, 475 P.3d 847.

50 The parties differ on the basis of Chimento's fraud claim. McCoy refers to Chimento's claims that McCoy promised her 15% of the sale proceeds or $300,000 for his agency, as well as 15% commissions on sales to induce her to work at Gallagher after the merger. Chimento's Answer Brief refers only to the promise to pay a percentage of the purchase price. At trial, Chimento testified regarding both promises and seems to have offered at least some testimony about commissions she claims she would have been owed under the agreement. Her counsel argued about both promises in opposition to McCoy's motion for directed verdict. Yet, in closing arguments, her counsel requested the jury grant McCoy “mercy” and award $260,000 on the fraud claim, the amount she was still allegedly owed from the purchase price for the agency. Though Chimento's arguments on appeal shift from those at trial, both premises for Chimento's fraud claim were before the jury.

51 On actual fraud, McCoy contends that the evidence failed to demonstrate he made promises without actually intending to perform them. Specifically, he cites his own testimony that he told Chimento before the merger closed that she would not receive commissions. McCoy testified that he learned during the merger process that Gallagher did not pay commissions and that he therefore rolled in Chimento's earnings by commission to reach her flat salary. He testified that he explained to Chimento before the merger that commissions were no longer going to be an option for compensation and Chimento was well aware. He also contends the promise of 15% of the purchase price was, in actuality, a promise of a portion of his year-end earnout payments with the potential to make $100,000 at the end of each year. McCoy asserted that this discussion came about after the merger when Chimento became upset about her compensation. Because McCoy had not yet received those funds before Chimento resigned, he also reasons that she could not demonstrate he never intended to pay her these funds.

52 McCoy's testimony merely disputes Chimento's. She testified that McCoy offered to pay her 15% of the $2,000,000 net payment he would receive from Gallagher upon purchase of the agency. She makes no mention that this sum was to come from year-end earnout payments. Rather, she testified that after the merger, when she became upset about the $300,000, McCoy's solution was to pay her $40,000 immediately and a commission based on renewal and new business at Gallagher.

53 Chimento also testified that, prior to the merger, McCoy represented that she would be able to maintain her salary as well as 15% commissions on new business sold at Gallagher. She testified that she only learned she would not receive commissions until “well after,” or a couple of months after, the merger. She explained:

Q. When did you learn that you were not going to receive commissions?

A. It would have been well after the merger. In the November time frame, Scott informed me that the Gallagher standard commission rate, which I already knew from the due diligence, was 30 percent. So to split it 15 percent to myself and 15 percent to him would only give him credit for 15 percent of the commission rate for his EBITDA which we've talked about which is what calculated his final buyout numbers. So he told me he was going to retain the full 30 percent.

54 On appeal, the Court disregards all evidence favorable to McCoy when we consider if the verdict is supported by competent evidence. Chimento clearly testified to an express promise to pay a percentage of the purchase price and commissions which changed after the merger. Though she did not present direct evidence that McCoy promised these things with no intention to pay, her claims can be supported by circumstantial evidence. See e.g. Austin v. Wilkerson, Inc., 1974 OK 23, 17, 519 P.2d 899. McCoy did not claim that he simply clarified the parties’ agreement or assert a misunderstanding--he denied forming either agreement before the merger and contended Chimento was aware she would receive no commissions. A jury was entitled to believe Chimento and therefore conclude that McCoy was not credible and intended to mislead her. The appellate court cannot reweigh that evidence to disturb the verdict.  ²¹

55 On Chimento's constructive fraud claim, McCoy argues that Chimento failed to provide clear and convincing proof that McCoy concealed material facts he was bound under the circumstances to disclose.

56 Constructive fraud:

1) may be based on a negligent misrepresentation or an innocent misrepresentation where there is an underlying right to be correctly informed of the facts, 2) may be based on the silence by one who has a duty to speak, or 3) may be invoked to prevent harm or to extend protection to recognized public interests.

Croslin v. Enerlex, Inc., 2013 OK 34, 12, 308 P.3d 1041. McCoy does not argue that he had no duty to disclose. He asserts there was no evidence he concealed anything because he informed Chimento when he learned that Gallagher would not pay commissions and negotiated a salary increase to make up the difference.

57 Like the actual fraud claim, while McCoy testified he learned that Gallagher would not pay commissions and informed Chimento prior to the merger, Chimento testified this fact was not disclosed until after the merger. Based on that testimony, even if McCoy later corrected this information, Chimento had already relied on it, based on her testimony. If the jury believed Chimento on that point, a jury could reasonably conclude from McCoy's own testimony that he learned and knew prior to the merger that Chimento would not receive commissions and failed to disclose it until after the merger. The jury is the arbiter of witness credibility. Where there is competent evidence to support the verdict, we must affirm the fraud judgment against McCoy.

58 McCoy also argues that Chimento's actual and constructive fraud claims were based on the same set of facts and should be reduced to avoid a double recovery. “A judgment which is clearly erroneous as to the amount awarded may be corrected by this Court on appeal.” Davon Drilling Co. v. Ginder, 1970 OK 51, 21, 467 P.2d 470.

59 McCoy argues both of Chimento's fraud theories were based on a promise to pay her part of the purchase price in the acquisition. Chimento's counsel did request the jury limit fraud damages to the sum Chimento claims she was owed for the purchase price, making no mention of commissions. Chimento also argues in her briefing that this purchase price was the basis of the jury's award, though she asserts it was not duplicative because the jury awarded half the requested amount on each claim. Yet McCoy's briefing plainly acknowledges Chimento's fraud claim at trial was also based on the promise of commissions. McCoy does not address Chimento's damages from this promise on appeal--whether they were established, or whether they may be differentiated from the $260,000 claimed from the purchase price.  ²²

60 Notwithstanding Chimento's contrary statements on appeal, her claims at trial were based on two separate promises. Therefore, McCoy has failed to meet his burden to demonstrate that Chimento's two fraud theories and resulting jury verdict were based on the same facts, affording an impermissible double recovery. McCoy did not meet his burden to demonstrate the award must be reduced. The trial court did not abuse its discretion by denying McCoy's post-trial motion on this ground.  ²³

CONCLUSION

61 For the foregoing reasons, we direct the trial court to enter judgment for all Defendants on Chimento's claim for malicious prosecution. We vacate the punitive damages award and remand for further proceedings to determine the amount of punitive damages to award on Chimento's claims against Gallagher Benefit and AJG for tortious interference with a contract and tortious interference with prospective economic advantage as instructed. We affirm the judgment for fraud against McCoy in its entirety.

62 AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

FOOTNOTES

1.   Chimento initially filed a Counter-Petition in Error. However, she did not file a brief-in-chief or address her counterappeal in her Answer Brief. She has abandoned or waived her counterappeal.

2.   The dismissal is not in the record.

3.   Chimento later dismissed her claims for libel/slander and false light invasion of privacy. The trial court granted Defendants’ demurrer to her negligence and conspiracy claims at trial. Defendants asserted a host of counterclaims. AJG dismissed its counterclaims for breach of fiduciary duty, tortious interference with a contract and prospective economic advantage or misappropriation of trade secrets or confidential business information against Chimento and a portion of its breach of contract claim. It also dismissed its civil conspiracy claim against Chimento and third-party Defendant Dynamic Prosthetics & Orthotics, LLC. Defendants asserted claims against Chimento for breach of an employment agreement, actual fraud, constructive fraud and unjust enrichment at trial. These claims were resolved at trial but are not at issue on appeal.

4.   This appeal was assigned to the author's docket on April 24, 2026.

5.   On Chimento's tortious interference with a contract claim, the jury awarded her $8,224.92 against McCoy, $30,158.04 against AJG and $30,158.04 against Gallagher Benefit. On the tortious interference with prospective economic advantage claim, the jury awarded Chimento $170,600.76 against McCoy, $625,536.12 against AJG, and $625,536.12 against Gallagher Benefit.

6.   The jury also found that McCoy had acted intentionally and with malice but did not award punitive damages against him.

7.   Malicious wrong is not the same tort as malicious prosecution.

8.   Counsel withdrew these three new theories.

9.   It is unclear when Chimento first provided Defendants with a draft pretrial order that included a malicious prosecution claim. Though Chimento asserts the trial court signed the Amended Pretrial Order before trial, it was not filed until October 11, 2023, after the jury had returned its verdict.As mentioned, a pretrial order was already on file well before trial. Under Oklahoma law, the pretrial order supersedes the pleadings and governs the trial of the case “unless departure therefrom is permitted by the Court to prevent manifest injustice.” Rule 5(I) of the Rules for District Courts of Oklahoma, 12 O.S.2021, Ch. 2, App., Rules 1. Arguably, Chimento should not have been permitted to add a new legal theory to the existing pretrial order without demonstrating it was required to prevent manifest injustice. She did not do so, given that she had repeatedly disavowed pursuing such a claim throughout the case. However, the trial court allowed the parties to amend the pretrial order in advance of trial, albeit with no permission to add new legal theories or claims. The trial court allowed the claim to proceed to the jury because it had been included in this later pretrial order (without ruling on Defendants’ objection). Therefore, to the extent one would consider the parties to have had permission to amend the pleadings, we address this matter under that authority.

10.   Chimento suggests amendment of the Pretrial Conference Order was necessary because of the trial court's remarks that the law had undergone significant interlocutory change during the case. In Chimento v. Gallagher Benefit Services, Inc., 2023 OK 22, 533 P.3d 748, the Court considered whether Defendants’ allegedly false statements to law enforcement and the Oklahoma Insurance Department enjoyed absolute or qualified privilege. At that time, Chimento was pursuing claims for negligence, intentional interference with business relations, false representation, constructive fraud and conspiracy. Though Chimento had dismissed her defamation claim, the Court recognized that Chimento's claims each adhered to the general thesis that Defendants had made false statements to the district attorney, police or third parties with the intent of harming her reputation and business. Id. at 6. The Court held qualified privilege applied to these claims. Nothing in Chimento changed or even addressed whether Chimento could pursue a malicious prosecution claim. As noted by the Court, she was already pursuing a number of other claims based on false statements without apparent impediment. Even so, Chimento was issued in March 2023. She could have sought to amend her claims well before trial commenced.

11.   Similarly, the trial court could and should have precluded Chimento from pursuing that claim based on the express statements of her counsel denying she intended to pursue a malicious prosecution claim upon which Defendants relied to their detriment. See e.g. First State Bank v. Diamond Bank Plastics Corp., 1995 OK 21, 39, 891 P.2d 1262(“Estoppel is generally understood to prevent one party from taking a legal position which is inconsistent with an earlier action that places the other party at a disadvantage.”)

12.   We reject any argument that Defendants were not prejudiced by the late addition or impliedly consented to trying the malicious prosecution claim based on the evidence presented at trial. Specifically, Chimento argues that Defendants consented to trying the malicious prosecution claim because they did not object to her presentation of testimony on her reputational damages or offered their own evidence to refute it and later argued in their motion for new trial that reputational damages were relevant only to the malicious prosecution claim. Failing to object to evidence which is potentially irrelevant to an issue or claim presented does not constitute trial by consent of previously undisclosed legal theories, nor does Chimento present any authority in support of this novel theory. More importantly, Defendants clearly objected to Chimento's attempt to assert the malicious prosecution claim. However, given that the trial court appears to have left the issue of whether Chimento would be permitted to pursue a malicious prosecution claim hanging in limbo throughout trial, Defendants were obligated to attempt to address that claim. Chimento's arguments on this point are entirely without merit.

13.   Chimento listed her specific claims for relief and a catch-all that stated “[a]ll other causes of action set forth in Plaintiff's Petition and First Amended Petition on file with this Court including malicious prosecution” and “such other causes of action as may be raised by the evidence at trial including Malicious Prosecution.” Defendants objected in the Order to anything other than the specifically delineated causes of action and again referred to the trial court's requirement that Chimento file written motions to amend if she wished to pursue a malicious prosecution claim. Chimento claims in her Answer Brief that Defendants have misstated that the malicious prosecution claim was not added until after the close of evidence because “[i]t was undisputed, however, that counsel and the trial court signed the amended PTCO prior to the start of trial,” citing pages 47, 48 and 73 of the June 10, 2024 transcript on the hearing of Defendants’ Motion for Judgment Notwithstanding the Verdict. Chimento herself misstates that transcript. Defendants’ counsel admitted that trial counsel signed the Amended Pretrial Order, though objecting to the addition of the claim, and believing the issue remained to be resolved. However, counsel did not admit or address whether the trial court signed the order before trial, even if that fact were dispositive.

14.   Answer Brief, p. 21 (“Because the DA voluntarily dismissed the charges against Chimento without prejudice, Appellants argue that the jury's verdict must be overturned as inconsistent with Glasgow.”) (emphasis original).

15.   Chimento also cites Browning v. Ray, 1968 OK 52, 440 P.2d 721, for the proposition that dismissal with prejudice is not required to support a claim based on dismissal of a criminal matter. In Browning, a justice of the peace dismissed a criminal complaint at the recommendation of the county attorney and stated that the court could not “see anything to call for criminal proceedings.” Id. at 7. Thus, the court dismissed the case. That case is distinguishable from the case here, where the trial record contains no basis for the dismissal whatsoever.

16.   The 2016 version was in effect when the district court entered the October 2018 Order.

17.   The court appears to refer to section 18(A)(7).

18.   Chimento presented no evidence at trial addressing whether she sought expungement on the basis of the statute of limitations or because the state had indicated it would not refile. In fact, no witness testimony was offered to authenticate or provide foundation for the Order, apart from Chimento's testimony that her arrest record had been expunged. Defendants objected to introduction of Exhibit 58 on this basis, among others. However, because we must reverse the trial court's judgment on this claim, we do not address that proposition of error.

19.   Chimento did not seek or present evidence of increased financial benefits to Defendants.

20.   The punitive damage award of $0 against McCoy is affirmed and is not to be revisited.

21.   McCoy also argues that Chimento's claim for fraud is not distinct from a breach of contract claim and that she is therefore not entitled to recover, citing McGregor v. Nat'l Steak Processors, 2012 WL 314059, *3 (N.D. Okla. Feb. 1, 2012). Though this is raised in McCoy's proposition that the fraud verdict is not supported by competent evidence, it is an argument that the fraud claim is not legally cognizable and must be pursued as a contract claim. McCoy raised this argument for the first time in his Motion for Judgment Notwithstanding the Verdict. Prior thereto, he did not object to the submission of fraud instructions on this basis, raise this issue in his motion for directed verdict or make any argument that Chimento's fraud claim is not legally cognizable prior to its submission to the jury. Where the trial court was prevented from correcting any perceived error at trial on this issue, because it was not raised, we consider it waived. See Farris v. Masquelier, 2022 OK 91, 28, 524 P.3d 942. Further, even if we consider this a challenge to the competency of the evidence and to have been generally preserved by a directed verdict motion on fraud, we still find this argument was waived. McCoy supplies a single case citation on appeal and no citation to evidence in the record concerning the scope of Chimento's claimed damages on fraud at trial or any argument expounding on what damages Chimento sought and whether they were or were not distinct damages in tort. For each of these reasons, we determine this argument is waived. See e.g. Alliance Steel, Inc. v. Martin Yack Const. Co., Inc., 2001 OK CIV APP 121, 4, 34 P.3d 656(released for publication by Oklahoma Supreme Court)(if a party allows case to be submitted to jury without asking for directed verdict “or otherwise legally attacking its sufficiency, the question of whether there is any evidence reasonably tending to support the [verdict] is not preserved for review, even where the sufficiency of the evidence is challenged by post-verdict motion”); Okla. S. Ct. Rule 1.11, 12 O.S.2021, ch. 15, app. 1.

22.   At trial, Chimento testified that the alleged embezzled checks she wrote on Gallagher's account were actually commission payments McCoy promised her and that he was aware of that fact. He argues on appeal that, if she paid herself the commissions he promised her, she cannot demonstrate fraudulent intent because she had been paid. As noted above, McCoy denied such an agreement and claimed the payments were unauthorized. Further, he made no argument on appeal that these payments fully addressed Chimento's alleged loss of commissions promised her, or that she could not demonstrate damages caused by his representations.

23.   Chimento cites an unpublished decision, J.M. ex rel. Morris v. Hilldale Indep. School Dist. No. 1-29, 397 Fed. App'x 445, 460 (10th Cir. 2012), for the proposition that we need not disturb the award as duplicative if the total amount is within the range of evidence presented. In that case, the court did note that it is generally unwilling to disturb or second guess a jury's verdict if the jury has been instructed (like here) not to award duplicative damages. The court also noted that, nonetheless, “double recovery is precluded when alternative theories seeking the same relief are pled and tried together.” Id. at 460. However, as noted, McCoy did not establish that the damages Chimento sought at trial were duplicative, notwithstanding her counsel's suggestion in closing to limit the award to the amount of the purchase price.

OPINION BY STACIE L. HIXON, CHIEF JUDGE:

WISEMAN, P.J., and FISCHER, J., concur.