___________________________

Rockingham

Nos. 98-110

98-111

PREMIER CAPITAL, INC.

v.

CHARLES A. GALLAGHER

PREMIER CAPITAL, INC.

v.

CHARLES A. GALLAGHER & a.

November 2, 1999

Jones, Wensley, Wirth & Azarian, of Rochester (Gregory D. Wirth on the brief and orally), for the plaintiff.

Watson, Lyons & Bosen, P.A., of Portsmouth (John E. Lyons, Jr. on the brief and orally), for the defendants.

HORTON, J. The plaintiff, Premier Capital, Inc. (Premier), appeals the decisions of the Superior Court (Brennan, J.) dismissing actions brought by its predecessor in interest, AMRESCO New England, L.P. (AMRESCO), against the defendants, Charles A. Gallagher, the Charles A. Gallagher Trust, and trustees Charles A. and Paula J. Gallagher. The court, following a bench trial, concluded that AMRESCO's breach of contract and fraudulent conveyance claims were untimely filed. We affirm.

On December 11, 1986, Charles Gallagher signed as president of Gallagher's Sports Center, Inc. (Gallagher's Sports), and as personal guarantor, a demand note, pursuant to which Gallagher's Sports borrowed the sum of $200,000 from the Atlantic Trust Company (Atlantic) and agreed to make monthly interest payments on the principal. In December 1987, Gallagher conveyed certain securities to a trust. The plaintiff contends that "payments on the [n]ote were made [by Gallagher's Sports] on a regular, or near regular, monthly basis through December 11, 1991," and that the corporation made an additional payment in October 1992.

The Federal Deposit Insurance Corporation (FDIC) was appointed receiver and liquidating agent for Atlantic on or about January 30, 1992. In October 1994, the FDIC transferred the demand note to AMRESCO. Following default by Gallagher's Sports and Gallagher, AMRESCO brought a contract action against Gallagher, as guarantor, on December 8, 1995.

AMRESCO subsequently filed a petition to attach Gallagher's assets. In connection with its petition to attach, AMRESCO asked Gallagher in February 1996 to produce the securities he owned. On February 26, Gallagher informed AMRESCO that his securities were being held in a trust and therefore could not be provided. AMRESCO, alleging, inter alia, that the conveyance of securities was fraudulent, brought an action in equity against the defendants on June 30, 1997, under the Uniform Fraudulent Transfer Act (UFTA), RSA chapter 545-A (1997). In the petition, AMRESCO claimed an interest in the securities predicated on its pending contract claim.

AMRESCO's claims were tried but were dismissed as untimely, and its motions for reconsideration were denied. This appeal followed. AMRESCO subsequently transferred the note to Premier, who was substituted for AMRESCO as the plaintiff.

We first address whether the plaintiff's contract action was timely filed. The parties agree that the three-year limitations period set forth in RSA 508:4, I (1997) governs. They also agree that RSA 382-A:3-122 (1961) (repealed 1994) determines the date on which the plaintiff's contract action accrued. Pursuant to RSA 382-A:3-122(1)(b), a cause of action on a demand note accrues on the date of the instrument or, if no date is stated, on the date of its issuance. "The sole purpose of