Nonsuit reversed: once a claim is timely, the statute of limitations cannot cut off earlier conduct
A statute of limitations decides whether a lawsuit was filed in time. It does not decide how much of the defendant's conduct the jury may hear about. In DeVone v. Morgan Stanley & Co. LLC, the Second District reversed most of a nonsuit judgment because the trial court found the claims timely and then used the limitations period to wall off years of earlier conduct anyway.
What happened in DeVone v. Morgan Stanley
Maurice Voce began trading options in the 1970s. In the 1980s he worked with an advisor at Dean Witter Reynolds, which later merged with Morgan Stanley, and from 1993 until mid-2012 with the broker who became a defendant. He died in August 2012 at 93. His family, as co-trustees of the family trusts and, for one of them, as personal representative of his estate, sued Morgan Stanley and his broker for breach of fiduciary duty and financial elder abuse. They had first pursued a FINRA arbitration, which was dismissed without prejudice in January 2019, and they filed this action in Los Angeles County Superior Court on April 25, 2019.
During trial, the court ruled on the statute of limitations. It applied a four-year period, found that the delayed discovery rule applied and that the period was tolled during the arbitration, and concluded the complaint was timely. It then calculated how much of the four years had run and how much remained, and projected the remaining time backward from the latest discovery date it had found, June 11, 2012. The result was a cutoff around September 2010: conduct before that date, the court ruled, was not compensable.
At the close of plaintiffs' case, defendants moved for nonsuit. The court granted it. On the elder abuse claim, it ruled from the bench that the account only grew in value. On the fiduciary duty claim, it found insufficient evidence of an industry benchmark, standard, or methodology for excessive commissions. Judgment was entered for defendants, and plaintiffs appealed.
Does a statute of limitations limit what conduct a plaintiff can recover for?
No, once the claim is timely. The court put it this way:
"The statute of limitations defines only the period within which an action must be commenced after accrual"
Once the trial court found accrual and timely filing, the statute had done its work. It could not then be reworked into a rule that shrank the conduct the jury could consider. Defendants tried to defend the ruling as an application of the continuous accrual doctrine, but that doctrine assumes the claim as a whole would otherwise be time-barred, and the trial court had found the opposite. As the opinion says, "Defendants' attempt to recast the trial court's ruling as a proper application of the continuous accrual doctrine fails".
The court also held that the trial court should not have decided accrual itself. The evidence could support an earlier or a later discovery date, and on that record "these are matters for a jury—not the court—to decide."
How does an appellate court review a nonsuit?
Favorably to the party who lost it. "A motion for nonsuit tests the sufficiency of the plaintiff's evidence before the defendant is put to its own case." The appellate court accepts the plaintiff's evidence as true, disregards conflicting evidence, and affirms only if that evidence could not support a verdict for the plaintiff. Review is also limited to the grounds the moving party actually raised in its motion. (For a related look at nonsuit review, see our note on a nonsuit reviewed de novo after a motion in limine.)
Applied here, that standard undid most of the judgment. Under the Elder Abuse Act, wrongfulness turns on what the defendant knew or should have known when it acted. The court held that a wrongful taking does not require a net financial loss, so the account's growth did not end the claim. The trial court's contrary reasoning, the court said, "was error, and it rendered the statute of limitations ruling prejudicial," because the evidence the limitations ruling had excluded was relevant to the claim the court then took from the jury. The court also held that the scope of the fiduciary duty depended on the whole course of dealing, not only the formal engagement, and on this record could not be resolved against plaintiffs as a matter of law.
What survived the appeal
One theory did not come back. The fiduciary duty claim based on excessive trading (churning) required opinion testimony that the trading was excessive in light of his investment objectives and that the commissions were excessive against an industry benchmark, standard, or methodology, and plaintiffs' retained witness disclaimed any opinion on churning. "Absent such testimony, the jury would have had no basis beyond speculation to conclude the trading was excessive."
The disposition is precise: the portion of the judgment dismissing the excessive-trading claim is affirmed, "The judgment is reversed in all other respects," and the matter is remanded for further proceedings, with costs to plaintiffs. The opinion was filed October 8, 2026, and certified for publication on October 29, 2026.
Key takeaways
- Once a claim is found timely, the statute of limitations does not limit the conduct for which the plaintiff may recover.
- When the evidence supports both an earlier and a later discovery date, accrual is a question for the jury.
- A nonsuit is reviewed with the plaintiff's evidence accepted as true, and only on the grounds the moving party raised.
- Under the Elder Abuse Act, a wrongful taking does not require proof of a net financial loss.
- A churning theory still fails without testimony that the trading was excessive for the client's objectives and the commissions excessive against an industry benchmark.
Why appeals like this one need an appellate lawyer
The nonsuit was the judgment on paper, but the ruling that did the damage came earlier: a mid-trial limitations ruling that cut the case off at September 2010 even though the court had found the claims timely. By the time plaintiffs rested, the evidence that ruling excluded was gone from the case, and the nonsuit followed. Undoing it took an appeal that had to show not just error but prejudice.
That is where appellate thinking pays for itself. An appellate lawyer looks past the last order to find the ruling that actually decided the case, frames the right standard of review (here, every inference in the plaintiff's favor and only the grounds the motion raised), and ties the error to the outcome so the court can see the prejudice. The same discipline works in the trial court: making the record on a limitations ruling while the jury is still in the box.
If a ruling mid-trial is reshaping your case, talk to an appellate lawyer early, before the record closes or a deadline runs.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864