dissenting.
The Court’s position can be summed up thusly:
When a clerk of an appellate court expresses that he or she questions whether the appellate court has jurisdiction, the appellant is free to voluntarily dismiss the appeal and, as a matter of law, that party has been prevented from presenting the merits of his or her appeal and it is a question of fact as to whether this conduct was negligence.
I dissent.
Unquestionably, McRoberts lost his right to pursue an ordinary appeal. The present case is a proceeding for bill of review. The questions before us are whether McRoberts lost his right of appeal by the wrongful conduct of the opposing party (which may include reliance upon the improperly executed duty of a court official), and whether his conduct was without negligence.
A bill of review is an equitable proceeding brought for the purpose of setting aside a judgment even though it is no longer subject to an ordinary appeal. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989). In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), we held that a bill of review complainant must “allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.”1 Id. 226 S.W.2d at 998; accord Ortega v. First RepublicBank, 792 S.W.2d 452, 453 (Tex.1990). I accept that the second element may be satisfied when a party has suffered a judgment by reliance on a court officer who improperly executes official duties. Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex.1987). However, I would hold that as a *456matter of law an attorney cannot rely upon a court officer’s mere questioning of jurisdiction as a basis for voluntarily nonsuiting the case.2
The bottom line in this case is that McRo-berts had filed a timely appeal from his $15,000 judgment against Ryals and Hart, but that he voluntarily dismissed that appeal because his attorney concluded the appellate court did not have jurisdiction. Unfortunately, after time for refiling the appeal had expired and the judgment had become unap-pealable, McRoberts learned, by the appellate court’s ruling in an original proceeding, that the appellate court did have jurisdiction of the original appeal because the order was a final judgment. See Ryals v. Canales, 748 S.W.2d 601, 605 (Tex.Civ.App.—Dallas 1988, orig. proceeding). This bill of review proceeding to have that order set aside followed.
Ryals and Hart, to support the trial court’s summary judgment, must have negated one or more of the elements of bill of review as a matter of law. See Gracey v. West, 422 S.W.2d 913, 918-19 (Tex.1968); see also Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970) (summary judgment proper when defendant negates one element of plaintiff’s claim as a matter of law). As mentioned earlier, a new trial by bill of review has been held to be proper when a court official misinforms a defendant about the existence of a judgment against him at a time when he could have done something about it. See Petro-Chemical Transport v. Carroll, 514 S.W.2d 240, 245 (Tex.1974); Hanks v. Rosser, 378 S.W.2d 31, 35 (Tex.1964). However, that is not the situation here, where all that occurred is that the clerk questioned jurisdiction. Counsel for McRoberts argues that the letter from the clerk convinced him that the order of severance was interlocutory.3 An attorney’s misunderstanding of a communication from the clerk might justify a failure to file a motion for new trial or perfect an appeal while still within jurisdictional time limits, but as a matter of law, it cannot be the basis for unilateral, voluntary nonsuit or dismissal of a case already filed or an appeal already perfected. As a matter of law, the attorney cannot have been prevented by the clerk from presenting a meritorious appeal when he takes the unilateral, voluntary action of dismissing his appeal.
The Court makes much of the clerk’s letter. The Court asserts that this letter was “at least misleading.” First, the letter from the clerk only questions jurisdiction; it cannot reasonably be read to be a ruling by the *457appellate court that it had no jurisdiction.4 Second, the assertion by the clerk that the order being appealed is interlocutory “with respect to the parent cause” is not a “misleading statement of the law.” The Court says the clerk’s letter is a misstatement of the law because “an order granting a severance with a judgment in the cause ordered severed is effective when signed.” 863 S.W.2d 452-63 (n. omitted) (emphasis added). But Richards v. Allen, 402 S.W.2d 158, 160 (Tex.1966), cited by the Court as supporting its conclusion under the record in this case, in fact, does not. Richards stands for the proposition that when judgment is rendered and an order of severance is signed severing out any remaining claims or parties, then the judgment is final. Richards does not hold that an order severing the interlocutory judgment makes the interlocutory judgment final even though it remains pending in the same cause with the unresolved matters. Except for Ryals, 748 S.W.2d 601, a mandamus action between these parties that decided this exact issue adversely to MeRoberts, I have found no authority that was a “statement of the law” under these circumstances. And, Ryals came nearly a year after the clerk’s letter was written. Despite its pronouncement today, apparently the Court failed to find such previous authority also.
I could debate further the reading of the clerk’s letter by the Court. Suffice it to say, even assuming the clerk actually told the attorney that the court did not have jurisdiction, instead of merely questioning the court’s jurisdiction, the lawyer is not relieved, as a matter of law, of the responsibility to get a ruling from the appellate court. See Hot Shot Messenger Service, Inc. v. Texas, 798 S.W.2d 413 (Tex.App.—Austin 1990, writ denied) (method for reviewing conduct of court clerk in refusing to file transcript is by motion to compel presented to the court); cf. Texas Educ. Agency v. Stamos, 817 S.W.2d 378, 389-90 (Tex.App.—Houston [1st Dist.] 1991, writ denied) (complaining party must make known objections and grounds thereof to the court and obtain a ruling thereon in order to raise the objections on appeal); Guzman v. Solis, 748 S.W.2d 108, 111 (Tex.App.—San Antonio 1988, writ denied). Today’s opinion means that counsel need no longer insist on a ruling Jfrom the court, but simply urge later on that he or she was mislead into not seeking a ruling because the clerk questioned his or her position. Yes, I recognize that MeRoberts did not dismiss his appeal until after the trial judge set aside his previous order of severance (it has been argued that this was a further “misleading” by a court official), but this was not a ruling by the court that had the authority to decide the issue. It was incumbent upon the attorney to get the ruling from the appellate court. He not only failed to do so, but by his own actions he deprived the appellate court of the opportunity to make that ruling. As a matter of law, MeRoberts was not prevented from presenting the merits of his case to the appellate court.
Standards for bill of review are necessarily stringent because of the necessity that judgments must become final at some point. Transworld Fin. Servs. Corp., 722 S.W.2d at 407. Endless litigation, in which nothing is ever settled, is far worse than being unable to grant equitable relief in every sympathetic case. Alexander, 226 S.W.2d at 998. Today’s ruling by the Court threatens the finality of a judgment on the mere basis that an attorney took the unilateral, voluntary action of dismissing his appeal because the clerk questioned whether the appellate court had jurisdiction.5
I would affirm the judgment of the court of appeals.
CORNYN, J., joins in this dissenting opinion.
. When a party is deprived of presenting the case on appeal, rather than at trial, the bill of review petitioner must present a record sufficient to show, prima facie, a meritorious ground of appeal, such that "the judgment might, and probably would, be reversed.” Petro-Chemical Transport v. Carroll, 514 S.W.2d 240, 245 (Tex.1974).
. The Court, citing to a former appellate judge's affidavit, notes that the affidavit states that McRoberts’ attorney was reasonable in relying upon the clerk's letter to conclude that the order was interlocutory, and therefore, holds a fact issue exists as to whether he was negligent. Thus, the Court concludes that the attorney for McRoberts was not shown to be negligent as a matter of law.
All of this discussion is apparently referring to the third prong of the bill of review standard, i.e. the misstep must be "unmixed with negligence.” The Court seems to be holding that reliance on an error of a court official (the second prong of the bill of review standard), creates a fact issue as a matter of law on whether the attorney’s act was negligence (the third prong). Regardless, a defendant who moves for summary judgment need only negate one element of the plaintiff's cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). While the Court renders its decision on only its conclusion that a fact issue exists as to the third prong, I address the second prong which is dispositive and commands rendition for Ryals and Hart. A summary judgment should be affirmed if any of the grounds asserted in its behalf are valid, even though it may have been upheld by a lower court on the wrong theory. Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668, 669 (Tex.1984) (per curiam); Veytia v. Seiter, 740 S.W.2d 64, 66 (Tex.App.—San Antonio 1987), aff'd, 756 S.W.2d 303 (Tex.1988).
. In response to the motion for summary judgment, the Court states, McRoberts presented an expert's opinion that his interpretation of the clerk's letter was reasonable. McRoberts’ expert says nothing about reasonable reliance on the clerk's letter. In pertinent part the affidavit reads:
I have reviewed the matters giving rise to the Bill of Review proceedings and am familiar with the case file and issues in the Bill of Review.
It is my opinion that Plaintiff’s counsel acted reasonably in believing that the judgment was interlocutory. If the judgment was interlocutory, it was reasonable to rely on Ms. Byrd to open the severed file.
No where does the expert identify the information, documents or activities McRoberts was reasonable in relying upon.
. The letter has been fully set forth in the Court's opinion. 863 S.W.2d 452.
. MeRoberts also argues that the conduct of opposing counsel prevented him from presenting his case. The logic that precludes MeRoberts from asserting that the clerk's action prevented him from prosecuting his case applies with even greater force to preclude his claim that the conduct of opposing counsel mislead him into unilaterally, voluntarily dismissing his appeal.