On Smith’s Motion for Rehearing
On motion for rehearing, Smith contends that, if the two-year statute of limitations governs his cause of action, the limitations period should have been tolled until his judgment against Gate One Motor Inn, Inc. became final on April 2, 1987. Therefore, Smith argues that the two-year limitations period had not run before he filed the present action against the directors and shareholders on September 27, 1988. Smith cites Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex.1991), and argues that, when a person is prevented from exercising his legal remedy by the pendency of court proceedings, the time during which he is prevented from acting should not be counted against him in determining whether limitations have barred his right. Smith’s reliance on Hughes is misplaced.
The court in Hughes held:
[Wjhen an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted.
The rationale in Hughes is that, if the client was forced to pursue the malpractice claim dining the litigation of the underlying claim, he would be forced to take inherently inconsistent litigation postures: the client would have to defend the attorney’s actions in the underlying claim while attacking them in the malpractice action. No such conflict confronted Smith in the present ease.
Smith maintained in his suit against the corporation, as he continues to do in the present case, that he is a creditor of the corporation. Smith’s posture in the present case is not inconsistent with the posture he took in his suit against the corporation. Therefore, Hughes does not apply. See Hoover v. Gregory, 835 S.W.2d 668 (Tex.App.— Dallas 1992, writ den’d); Ponder v. Brice & Mankoff, 889 S.W.2d 637 (Tex.App. — Houston [14th Dist.] 1994, writ requested).
Smith further argues that a four-year statute of limitations in either TEX. CIV. PRAC. & REM.CODE ANN. § 16.004 or 16.051 (Vernon 1986) and not the two-year statute in TEX.CIV.PRAC. & REM.CODE ANN. § 16.003 (Vernon 1986) governs the breach of the fiduciary duty alleged in this case. Smith cites Perez v. Gulley, 829 S.W.2d 388 (Tex.App. — Corpus Christi 1992, writ den’d), and Spangler v. Jones, 797 S.W.2d 125 (Tex.App. — Dallas 1990, writ den’d). Both of these cases hold that, inasmuch as a breach of fiduciary duty “subsumes” a claim of constructive fraud, the claim is governed by the four-year statute of limitations.
The court in Kansa Reinsurance Company, Ltd. rejected the reasoning of Spangler. We also note that the Dallas Court of Appeals, which decided Spangler in 1990, later stated in Hoover v. Gregory, supra, that the two-year statute of limitations applied to a cause of action for breach of fiduciary duty.
The Texas Supreme Court held in Williams v. Khalaf, 802 S.W.2d 651, 656 (Tex.1990), that fraud claims are governed by the four-year statute of limitations applicable to “debt,” Section 16.004. However, the court also stated:
In general, torts developed from the common law action for “trespass,” and a tort not expressly covered by a limitation provision nor expressly held by this court to be governed by a different provision would presumptively be a “trespass” for limitations purposes.
Section 16.003 provides a two-year statute of limitations for “trespass for injury to the estate or to the property of another.” Smith’s tort claims against the directors and shareholders “as trustees of the assets of the corporation” are governed by the two-year statute of limitations.
Smith’s motion for rehearing is overruled.