2013-0874, James Conant & a. v. Timothy O’Meara & a.

decision disbarring O’Meara for ethical violations committed in the course of Many of the facts underlying this actio n are recited in our previous

reverse in part. Respondent O’Meara Newborn, PLLC did not appeal. We affirm in part and James and Anita Conant, for the equitable recovery of fees paid to O’Meara. his law firm, O’Meara Newborn, PLLC, in this action brought by the petitioners, the Superior Court (Wageling, J.) granting summary judgment against him and HICKS, J. R espondent Timothy O’Meara (O’Meara) appeals the order of

brief and orally), for r esponde nt Timothy O’Meara. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

the p etitioner s. Orr & Reno, P.A., of Concord (Jeffrey C. Spear on the brief and orally), for

No. 2013 - 874 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

(quotation omitted). handwritten changes indicating that O’Meara’s fee was “to be negotiated.” Id. E ventually the parties modified the original fee agreement, initialing he would sue them for his one - third contingency fee and ‘would win.’” Id. litigation ‘gets ugly’” and “told the Conants that if they terminated his services, happen if the Conant family fired him. Id. at 175. “O’Meara responded that “[t]he exchange . . . became heated,” id., and O’Meara was asked what would such as this one,” but “[n]one of the other Conants responded.” Id. Instead, stated “he had been informed that a $ p. 2 2 million fee was reasonable in a case $3.17 million, which angered James Conant. Id. James Conant’s brother limits. Id. O’Meara offered to reduce his poten tial fee from $3.67 million to parties discussed what O’Meara’s fee should be if the case settled for the policy Tension over O’Meara’s fee persisted. Id. At a meeting on February 25, the agreed to consider it, and thereafter proposed a $ 166,000 reduction. Id. James C onant suggested that O’Meara reduce his fee. Id. at 174. O’Meara After expressing concern over O’Meara’s unauthorized demand to settle,

sustain her for the rest of her life. Id. at 17 p. 2 2, 174. years old at the time of the accident, would need mor e than $23 million to certified life planner later estimated that Anita Conant, who was forty - seven O’Meara knew he lacked authority to settle the case for the policy limits. Id. A to trial” if the policy limits were not p aid. Id. (quotation omitted). At the time, believed the suit was “a policy limits case” and had been instructed “to proceed Approximately eight days later, O’Meara informed opposing counsel that he informed by opposin g counsel that the insurer did not contest liability. Id. O’Meara filed suit on November 3, 2005, and, o n December 1, was

for a total of $11 million. Id. that the paving company whose truck was involved in the accident was insured Approximately t en days after being retained by the Conants, O’Meara learned 33.33% of the gross amount recovered.” Id. at 173 (quotation omitted). a contingent fee agreement providing, in part, “that O’Meara would be paid the Conants in a p ersonal injury suit arising out of the accident. He execut ed James Conant, Anita Conant’s husband, retained O’Meara to represent

suffered, she was rendered a ventilator - depende nt quadriplegic. Id. while stopped at a red light and, as a result of the spinal cord injury she accident in Pennsylvania. Id. at 17 p. 2 2. She was rear - e nded by a paving truck On May 19, 2005, Anita Conant was severely injured in an automobile

court’s order or are supported by the record. below that are not drawn from O’Meara’s Case w ere either recited in the trial Accordingly, we provide only a n abbreviated background below. F acts recited representing the Conants. See O’Meara’s Case, 164 N.H. 170 ( p. 2 2012). p. 3 3

$750,000 paid prior to arbitratio n, we decline to consider the issue of costs. Given the inadequacy of the record and briefing on this issue, and our ruling regarding the then observes that “[t]he arbitration dissent estimated this amount was ‘approximately $ p. 3 37,000.’” even when fees are disgorged, “costs advanced on behalf of the cli ent do not get given back.” He parties, the arbitrators, or the trial court. O’Meara mentions costs only briefly, contending that The record is not clear how, or whether, provision for costs and expenses was made by the 

fee forfeiture. find the petitioners’ action barred by the statute of limitations; and ( p. 3 3) ordering petitioners to relitigate matters determined in the prior arbitration; (2) failing to On appeal, O’Meara argues that the trial court erred in: (1) permitting the

O’Meara appealed.  O’Meara to disgorge the $750,000 the Conants paid him prior to arbitration. making his retention of the fee amount inequitable.” Accordingly, it order ed ‘undisputed’ fee amount, O’Meara had already violated his fiduciary duties, Conants.” The court also found that “at the time the Conants paid O’Meara an the arbitration judgment and order ed O’Meara “to return $8 p. 3 37,000 to the Ruling on cross - motions for summary judgment, the trial court set aside

paid them. in equity against O’Meara and his firm to disgorge all fees the Conants have October 17, 2012, the Conants commenced this case as an independent action $2 million fee at the February 25 meeting.” Id. at 181. By petition dated under oath when he testified at the arbitration that the Conant s agreed to his disbarring him. See id. at 182. In that order, we concluded that “O’Meara lied ensuing disciplinary proceeding culminated in our September 18, 2012 order Attorney Discipline Office (ADO) alleging ethical violations by O’Meara. The On February 6, 2007, counsel for the Conants filed a grievance with the

$41 p. 3 3,000. See i d. at 176. One arbitrator dissented. award ing O’Meara $837,000 of the escrow fund and the Conants t he remaining in fees.” Id. at 176. In March 2009, t he arbitrat ion panel reached a decision Conants’ home on February 25, the Conants had agreed to pay him $2 million be divided.” Id. At the arbitration, “O’Me ara testified that, before he left the place $1,250,000 in escrow, and arbitrate the issue of how this amount should agreed that the Conants would pay O’Meara an undisputed fee of $750,000, case settled for $ 11.5 million. Id. Subsequently, “t he Conants and O’Meara contingencies. After the mediation, the Conants dismisse d O’ Meara and the O’Meara negotiated an $11.5 million settlement subject to certain

choice but to sign a memorandum agreeing to that fee. Id. unless he received at least a $2 million fee.” Id. James Conant felt he had no Conants at the courthouse “that he would not proceed with the mediation scheduled mediation in federal court in Pennsylvania, O’Meara informed the The dispute over fees continued, and ultimately, on the day of a p. 4 4

Highway Committee, Inc. v. Chandler, 767 F.2d 21, 2 p. 4 4 (1st Cir. 1985) (“A trial court, that judgment cannot have preclusive effect. Cf. No East - West fee.” In other words, because the ar bitrators ’ judgment was set aside by the is irrelevant that they had considered the appropriateness of part of O’Meara’s arbitrators’ decisions cannot stand because they were procured by fraud, so it the trial court’s alte rnative ruling on the res judicata issue; namely, that “the As the Conants point out, however, O’Meara fails to challenge on appeal

all legal fees paid. before the arbitrators raised the issue of forfeiture by asking for the return of was not presented in the arbitration.” He asserts that the Conants’ pleadings O’Meara argues that the trial court erred in finding “that the issue of forfeiture judicata and that the trial court erred in concluding otherwise. Specifically, O’Meara first contends that the Conants’ claims are barred by r es

ultimate decision to grant the equitable relief of a constructive trust”). summary judgment and “abuse of discretion standard as to the trial court’s of review to grant of constructive trust on summary judgment: de novo as to Jones, p. 4 496 N.W.2d 1 p. 5 56, 157 (Wis. Ct. App. 19 92) (applying two - tiered standard unsustainable exercise of discretion standard); cf., e.g., Singer by Cohen v. abuse of discretion”); State v. Lambert, 147 N.H. 295, 296 (2001) (explaining (2001) (noting that “[w]e re view the trial court’s grant of equitable relief for an v. Village of Winnipesaukee Timeshare Owners’ Assoc., 147 N.H. 111, 115 arbitrators’ award — for an unsustainable exercise of discretion. See Neumann trial c ourt’s decision to grant equitable relief — in the form of setting aside the determination of whether a genuine issue of material fact exists, we review the summary judgment standard of review to the legal issues and to the facts established in . . . [previous] action”). Although we apply our traditional collateral estoppel, also referred to as ‘issue preclusion,’ barr ed relitigation of genuine dispute of material facts prevented summary judgment because Ct. App. March 25, 1999) (ruling “trial court correctly determined that no Mortg. Servs., Inc. v. Stovall, No. 981686 – CA, 1999 WL 33244791, at *1 (Utah be considered undisputed for summary judgment purposes. See e.g., Mut. Case, those facts may not be challenged in this proceeding and, therefore, may relied upon facts found by the ADO and upheld by this court i n O’Meara’s Giant Pump Co., 163 N.H. 727, 730 (2012). To the extent that the trial court application of the law to the facts de novo.” Phaneuf Funeral Home v. Little summary judgment.” Id. (quotation o mitted). “We review the trial court’s party is entitled to judgment as a matter of law, then we will affirm the grant of that evidence discloses no genuine issue of material fact and if the moving Human Servs., 166 N.H. 358, 364 (2014) (quotation omitted). “If our review of entitled to judgment as a matter of law.” Dube v. N.H. Dep’t of Health & genuine issue of material fact exists, we determine whether the moving party is most favorable to each party in its capacity as the nonmoving party and, if no judgment under the following standard: “[W] e consider the evidence in the l ight We review the trial court’s rulings on cross - motions for summary 5

judgment obtained by fraud despite the untimeliness of the action brought for Hazel - Atlas addressed the power of a federal court to set aside a

alternatively, under New Hampshire common law. grounds by Standard Oil Co. of Cal. v. United States, 429 U.S. 17 (1976), and, Hazel - Atlas Co. v. Hartford Co., 322 U.S. 238 (1944), overruled on other procured by fraud.” The court reached t his result under the rule described in judgment awarding O’Meara $837,000 must be set aside because it was set aside the judgment or to review the arbitration award, the arbitration “despi te the running of the statute of limitations on an independent action to Conants’ claim to vacate the arbitrators ’ award. The trial court ruled that The first two limitations periods, by their terms, apply only to the

O’Meara argues “that period expired in 2009 or 2010.” three - year statute of limita tions for personal actions. RSA p. 5 508:4 (2010). The third limitations period O’Meara cites is New Hampshire’s general

2008. RSA p. 5 542:8 (2007). O’Meara contends that this statutory period expired in

that the arbitrators have exceeded their powers. mis conduct by the parties or by the arbi trators, or on the ground mistake, or vacating the award for fraud, corruption, or confirming the award, correcting or modifying the award for plain the arbitration may apply to the superior court for an order At any time within one year after the award is made any party to

Hampshire’s arbitration statute, which provides, in part: The second limitations period cited by O’Meara is set forth in New

that a ward shall be final.” O’Meara asserts “[t]hat period expired in 2007.” motion seeking such relief within 30 days of the date of the arbitrators’ award, the parties or the arbitrators.” The y further agreed “that if neither party files a vacating the arbitrators’ award solely for fra ud, corruption, or misconduct by extent that either may seek an order from the New Hampshire Superior C ourt t he Conants and O’Meara waive d their rights under RSA p. 5 542:8 “except to the to arbitration their claims to the disputed portion of the fee. In that agreement several years. First is the deadline set forth in the p arties’ agreement to submit be applicable to this case and that the Conants have missed all of them by of limitations. He asserts that there are several limitations deadlines that may O’Meara next argues that the Conants ’ claim s are barred by the statute

and sufficient basis for the trial court’s ruling. O’Meara’s res judicata argument because he failed to challenge the alternative direct estoppel or as a matter of law of the case.”). We need not further address vacated judgment has no preclusive force either as a matter of col lateral or p. 6 6

have been guilty of perjury.” Hazel - Atlas, 322 U. S. at 245. Rather, it involved witness who, on the basis of after - discovered evidence, is believed possibly to before it was “not simply a case of a judgment obtained with the aid of a 71 F.3d 44, 47 - 48 (1st Cir. 1995). The Hazel - Atlas Court stated that the case suspected perjury by a w itness. Geo. P. Reintjes Co., Inc. v. Riley Stoker Corp., recognized in Hazel - Atlas “never included garden - variety fraud” claims such as It has been noted that the “fraud exception for untimely requests”

18 p. 6 64). 51 N.H. 388, 400 (1872) (setting aside, in 1872, a divorce decree granted in that point we are clear that it may be if the proofs are clear.” Adams v. Adams, time, this decree can be set aside or vacated for fraud and impo sition; and on judgment was rendered: “The great question is, whether, after this lapse of be granted notwithstanding a long passage of time since the challenged Haywood, 40 N.H. 437, 441 (1860). We have also observed that such relief may vitiate a judgment, and a court of equity may declare it a nullity.” Wingate v. New Hampshire common law has similarly rec ognized that “[f] raud will

Id. at 244 - 45 (citations and footnote omitted).

entered had long since passed away. devitalized the judgment even though the term at which it was where the situation has required, the court has, in some manner, particular cases, the net result in every case has been the same: benefit whatever from it. But whatever form the relief has taken in restraining the beneficiaries of the judgment from taking any p ermit a new trial, altering the terms of the judgment, or granted has taken several forms: setting aside the judgment to . . . . [I]n cases where courts have exercised the power, the relief gross to demand a depart ure from rigid adherence to the term rule injusti ces which, in certain instances, are deemed sufficiently fashioned to fulfill a universally recognized need for correcting foundation of our Republic, the courts have developed and which was firmly established in English practice long before the judgment s regardless o f the term of their entry. This equity rule, which is after - discovered fraud, relief will be granted against rule of equity to the effect that under certain circumstances, one of F rom the beginning there has existed alongside the term rule a

not, however, without exception: which the judgments were finally entered.” Id. at 244. The general rule was would not alter or set aside their judgments after the expiration of the term at courts, both trial and appellate, long ago established the general rule that they the term of court. Id. at 244. As the Supr eme Court explained, “[f] ederal that purpose. Hazel - Atlas, 322 U.S. at 239, 244. The time limit at issue was p. 7 7

this power will always be exercised with great caution” (quotation omitted)). of time and change in status of persons upon faith in the validity of the decree, court unquestionably had the power to vacate the decree, “[a]fter a long lapse divorce decree a s within trial court’s discretion a nd noting that alt h o ugh trial 349, 350 (1949) (affirming dismissal of petition brought in 1946 to vacate 192 p. 7 7 failure to notify libellee of the divorce action); cf. Bussey v. Bussey, 95 N.H. Adams, 51 N.H. at 400 (1864 divorce decree set aside in 1872 for fraudulent long after it was rendered, the fraud was of a kind other than perjury. See omitted)). On the other hand, in cases where we have set aside a judgment in scope tha n that which is sufficient for relief by timely motion” (quotation sustain an independent action attacking the finality of a judgment is narrower F.3d at 1325 (noting, under federal law, that “the type of fraud necessary to grounds for new trial in 1832 when tainted trial held in 1830); cf. Hadges, 48 G.F.M.C. v. Mathe s, 5 N.H. 574 (1832) (perjury of witness given as alternate pleadings effectively admitted the award was obtained through his perjury); (1872) (arbitrators’ 1870 award set aside in equity in 187 2 when defendant’s have been, under any measure, timely. See Craft v. Thompson, 51 N.H. 536 used to vitiate a judgment, the action, how ever it was brought, wo uld seem to after the original judgment was rendered. In cases where perjury has been a judgment may be set aside or a new trial granted, on grounds of perjury, long We have not explicitly addressed whe ther, or under what circumstances,

judgment. See RSA 526:4 (200 p. 7 7). under that statute, however, must be brought within three years of the tainted RSA 526:1 (2007) (current version of statute cited in Rasquin). A petition justice has not been done. See Rasquin v. Cohen, 92 N.H. 440, 441 (1943); see that a new trial may be granted when, due to accident, mistake or misfortune, a witness may constitute grounds for a new trial under the statute providing The treatment of perjured testim ony in our cases is less clear. Perjury by

at *6 (W.D. Wash. Feb. 5, 2015). commits the perjury.” Myser v. Tangen, No. C14 - 0608JLR, 2015 WL 502316, the court only in special situations, such as when an officer of the court variety fraud,” Geo. P. Reintjes, p. 7 71 F. 3d at 48, “[p]erjury constitutes fraud on First Circuit’s observation that fraud on the court does not encompass “garden - Cir. 1995) (emphasis added) (quotation omitted). Thu s, consistent with the of adjud g ing ca ses.” Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1325 (2d the judicial machinery cannot perform in the usual manner i t s impartial task defile the court itself, or is a fraud perpetrated by officers of the court so that has been described as “only that species of fraud which does or attempts to, clause in Fed eral R ule of Civ il P rocedure 60(d)(3). Fed. R. Civ. P. 60(d)(3). It cour ts, may be brought as an independent action p ermitted under the savings This type of fraud is typically called “fraud on the court” and, in federal

Patent Office but the Circuit Court of Appeals.” Id. at 245 - 46. “a deliberately planned and carefully executed scheme to defraud not only the p. 8 8

N.H. at 1 p. 8 81. That conclusion is equivalent, for th e s e purposes, to a conviction agreed to his $2 million fee a t the February 25 meeting.” O’Meara’s Case, 164 “O’Meara lied under oath when he testified at the arbitration that the Conants strong proof of falsity is established by our conclusion, in O’Meara’s Case, that Waller v. Sta te, 192 P.3d 1058, 1064 (Idaho 2008) (quotation omitted). Here, action to set aside a judgment is a most unusual remedy, available only rarely.” In addition, we agree with the Idaho Supreme Court that “a n independent evidence, is believed possibly to have been guilty of perjury” (emphasis added)). case before it did not involve “a witness who, on the basis of after - disco vered perpetrat e a fraud upon the court”); Hazel - Atlas, 322 U.S. at 245 (noting the that “[t]he facts of the present case are strongly suggestive of an attempt to 544, to support relief from a judgment. Cf. Rasquin, 92 N.H. at 442 (noting Mathes, 5 N.H. at 577, or later admission of false swearing, Craft, 51 N.H. at proof of falsity, such as conviction of perjury on the defendant’s confession, be disputed before the original tribunal. However, we have required strong 51 N.H. at 538 (preface to opinion). Thus, the perjured testimony may actually [defendant], though he did then and there deny the correctness thereof.” Craft, furnish de finite and positive evidence to contradict the statement of the an arbitration hearing and that the plaintiff “was then and there unable to proceeding. In Craft, the plaintiff alle ged that the defendant testified falsely at seeking to set aside the judgment cannot have suspected fraud during the prior “after - discovered” factor, if required at all, does not mean that the party and subject to lengthy cross - examination.” Under our case law, however, the testimony was intrinsic evidence, known at the time and not after - discovered, Similarly, O’Meara ’s first argument contends that his “arbitration

unpersuasive. or careful execution. Accordingly, we find O’Meara’s second argument case law and the guidance of Hazel - Atlas, does not require deliberate planning instance, t he fraud on th e court doctrine we recognized above, based on our between this case and Hazel - Atlas. Not all, however, are relevant here. For system itself.” O’Meara’s arguments attempt to exploit every factual difference “was not believed and therefore did not attack the integrity of the judicial aid’ of [his] testimony”; (4) he was “at most” a witness; and (5) his testimony executed ’”; (3) “the record is clear that the judgment was not ‘obtained with the evidence suggest s that his “rendition was ‘ deliberately planned’ or ‘carefully was known and discernible during his arbitration testimony”; (2) no record separate grounds: (1) his “belief about events was not ‘after - discovered,’ but O’Meara argues that the Hazel - Atlas doctrine does not apply on five

judgment or award. court — constitutes sufficient grounds under New Hampshire law to set aside a found by the trial court in this case — in particular, perju ry by an officer of the action. We hold only that fraud on the court, as recognized in Hazel - Atlas and may be set aside on a n untimely request, whet her by motion or independent We need not now dec ide all conditions under which a judgment or award p. 9 9

the circumstances call fo r such an attempted appraisal”). Compare Craft, 51 influence that the [false evi dence] exerted on the judges[,]. . . we do not think at 247 (noting that while “it is wholly impossible accurately to appraise the conclude that the reliance evident here is sufficient. S ee Hazel - Atlas, 322 U.S. testimony by the tribunal is required under Hazel - Atlas or our cases, we A lthough it is not clear how much, if any, reliance on the perjured

‘obtained with the aid’ of [his] testimony.” findings, we cannot agree with O’Meara that the arbitrators’ award “was not by applying that percentage to the actual settlement amount. Given these fee on . . . a [$14.5 million] recovery would be fai r,” and calculated the award Finally, they found that “[b]oth parties . . . agreed that a $2.0 million, or 13.8%

compelling evidence of the belief of the parties. in establishing that the $2 million dollar fee was not excessive, is agreement in writing to a fee in that amount, while not conclusive million dollar recovery was fair, followed by James Conant’s actual Conant to the concept that a $2 million dollar fee on an $11 T he general acquiescence on February 25th of James and Anita

limit.” They also found: the parties had agreed on a $ 2.0 million dollar fee on a recovery of the policy during the period from February 25 to February 27, that “O’Meara believed that T he majority of the arbitration panel concluded, based up on evidence of events arbitration, it appears that the arbitration was influenced by this statement. 176. Although the falsity of this statement was not established until after the to his $2 million fee at the February 25 meeting. O’Meara’s Case, 164 N.H. at During the arbitration hearing, O’Meara testified that the Conants agreed

court’s legal rulings de novo). O’Hearne v. McClammer, 163 N.H. 430, 436 (2012) (noting that we review trial Accordingly, we make our own determination on this issue de novo. Cf. (noting that “[t]he interpretation of a court order is a question of law”). the arbitrators’ decision. Cf. Appeal of Langenfeld, 160 N.H. 85, 8 p. 9 9 (2010) court made its finding as a matter of law on the basis that it was interpreting and in this way, O’Meara’s perjury was material to their judgment.” The trial that “[t]he arbitrators clearly relied on O’Mea ra’s testimony to [a certain] extent, testimony was not believed by the arbitrators. The trial court found, however, O’Meara’s third and fifth arguments both rest upon the premise that his

reject O’Meara’s first argument. proof of falsity here sufficiently qualifies as after - discov ered. Accordingly, we cause, upon the hearing before the referees”). It appears from our cases that particularly set forth in the bill, is equivalent to his conviction of perjury in the admission of the truth of the charge of false swearing, distinctly and of perjury. Cf. Craft, 51 N.H. at 544 (finding that “[t]he defendant’s practical p. 10 10

argument that equitable relief is unwarranted where the Conants had adequate litigants.” Hazel - Atlas, 322 U.S. at 246. Thus, we also reject O’Meara’s of the integrity of the judicial process must alw ays wait upon the diligence of the Supreme Court stated in Hazel - Atlas: “Surely it cannot be that preservation relief against fraudulent judgments is not of statutory creation”). Moreover, as (Mont. 1985); see also Hazel - Atla s, 322 U.S. at 248 (noting that “[e]quitable inherent and independent of statute.” Salway v. Arkava, 695 P.2d 1302, 1306 of the court to set aside a judgment on the basis of fraud upon the court is 542:8. We disagree. As noted by the Supreme Court of Montana, “[t]he power 1872 has been “superseded by New Hampshire’s arbitration statute.” See RSA O’Meara nevertheless contends that the doctrine embodied in Craft in

that he was not an officer of the court when he testified before the arbitrators. tribunal.” Id. (quotation omitted). Accordingly, we reject O’Meara’s con tention attorneys are prohibited from making false statements of material fact to a the arbitration panel.” Id. at 181. We noted that “[a]s officers of the court, notwithstanding that he “no longer represented the Conants when he lied to we found O’Meara’s arbitration testimony to be grounds for disbar ment testified as a fact witness.” We implicitly found to the contrary, however, when representative capacity” a nd “was not acting as an officer of the court when he court.” He contends that although he wa s a lawyer, he “was not acting in a O’Meara lied to the arbitrators, he did so in his capacity as an officer of the O’Meara’s fourth argument challenges the trial court’s finding that “when

O’Meara’s C ase, 164 N.H. at 179 (emphasis added). no opinion on th e issue, as “we lack[ed] a sufficient record to decide” it. Professional Conduct Committee “speculated” to that effect and we expre ssed testified falsely.’” (Quoting O’Meara’s Case, 164 N.H. at 179.) Rather, the O’Meara’s Case that “‘the arbitration panel likely concluded that O’Meara agreed “not persuasive.” Nor did we, contrary to O’Meara ’s assertion, note in (the dissenting arbitrator) found O’Meara’s testimony that the parties had so majority made no finding that the parties agreed to a $2 million fee and that he either.” O’Meara misstates th e record. The dissenting arbitrator said that the testimony unpersuasive and “emphasized that the majority did not believe it O’Meara nevertheless asserts that the dissenting arbitrator found h is

result”). set aside even i f it is not found that a new trial will probably produce a different strongly tends to prove, that the false testimony is dishonest, the verdict will be appears that he testified falsely on a material issue, and the evidence proves, or 442 (modifying rule so that “[w]hen a party is given a verdict and it later guilty of misbehavior, corruption, fraud, and perjury”) with Rasquin, 92 N.H. at such an award as they would not have made if the defendant had not been willful ly deceived and defrauded the arbitrators, and misled them into making N.H. at 544 (noting bill in equity alleged that defendant “knowingly and p. 11 11

statute of limitations”). gen eral rule, courts of equity, equally with courts of law, are bound by the 508:4; Wentworth v. Wentworth, 75 N.H. 547, 550 (1910) (noting that “[a]s a notwithstanding that the Conants brought their petition in equity. See RSA We apply the general three - year limitations period for personal actions

cause thereof.” Id. (quotat ion and citation omitted). reasonable diligence should have discovered, both the fact of an injury and the present, it does not accrue until the plaintiff discovers, or in the exercise of “Although a c ause of action arises as soon as all of the necessary elements are Beane & Co., 160 N.H. 708, 712 (2010) (quotation and ellipses omitted). a plaintiff may bring suit after a cause of action accrues.” Beane v. Dana S. statute of limitations. “Statutes of limitation place a limit on the time in which We therefore address separately whether that claim is barred by the

tribunal. fraud on a tribunal can justify avoiding the time - bar of a claim not before that whether O’Meara was entitled to a disputed portion of fees.” We fail to see how As the trial court found, the arbitrators “were only tas ked with considering award but also to disgorge fees. To the extent the trial court did so, it erred. avoid the statute of limitations on not only their claim to vacate the arbitrators’ equitable principles under Hazel - Atlas and New Hampshire common law to arbitration. The Conants contend that the trial court properly applied Conants ’ claim for forfeiture of the $750,000 they paid O’M eara prior to However, t h e fraud on the tribunal doctrine doe s not apply to the

exercise of discretion. award, as opposed to some lesser amount, constitutes an unsustainable we cannot say that the trial court’s ord er to disgorge the entire $837,000 Neither are w e persuaded by O’Meara’s policy arguments against forfeiture and nor legal fees for services he renders an estate.” McCool, 131 N.H. at 351. existence he eithe r knew or should have known, ma y receive neither executor’s professional conduct by engaging in clear conflicts of interest, of whose McCool, 131 N.H. 340 (1988), that “an attorney who violates our rules of own interest s above those owed to his clients. We held, in In re Estate of the arbitration panel in an attempt to secure his own fee, O’Me ara placed his disgorge the $837,000 awarded by the arbitrators. In perjuring himself before that the court sustainably exercised its discretion in ordering O’Meara to arbitrator’s award under the fraud - on - the - court doctrine. We also conclude arbitrators, as an officer of the court, the trial court permissibly vacated the We conclude that because O’Meara committed perjury before the

not limit the court’s inherent power to protect itself from fraud. remedies at law. A litigant’s lack of diligence in pursuing legal remedi es does p. 12 12

DALIANIS, C.J.