concurring.
Although I concur in the order conditionally granting the writ of mandamus, I do not agree with the discussion of Wolma v. Gonzalez, 822 S.W.2d 302 (Tex.App.—San Antonio 1991, orig. proceeding).
Greenberg v. Brookshire is dispositive of this appeal. See Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.1982, orig. proceed*157ing). Greenberg holds that a court should not hear a counterclaim after the plaintiff takes a non-suit. Id. at 871. Because Rule 162 makes no distinction between counterclaims and motions for sanctions, requiring both to be pending at the time of a non-suit to continue to be effective, the rationale of Greenberg precludes the imposition of the sanction in this case. See id.
Rule 13 was amended in 1987 — after Greenberg — to provide for sanctions for groundless pleading brought in bad faith or for harassment. TexR.Civ.P. 13. At the same time, Rule 162 was amended to provide that a non-suit would not affect pending counter claim or motions for sanctions. Id. at 162. Thus, it appears that the Supreme Court intended that the rule of Greenberg survive those changes in the Rules.
I would distinguish Wolma. It involved a take-nothing judgment rather than a non-suit. Wolma, 822 S.W.2d at 303. Thus, Rule 162 was not involved. It is true that the opinion states “Wolma nonsuited his claim.” Id. at 302. However, the opinion further states that the court “signed an agreed judgment that Wolma take nothing against the real party in interest” and the opinion is premised on that fact. Id. at 302-03. If Wolma involved a judgment, it is not applicable to the facts of this case. If it involved a non-suit, it is sufficient to say that it cannot be reconciled with Greenberg and Rule 162. See Greenberg, 640 S.W.2d at 870; Tex.R.Civ.P. 162. In either event, discussions of inherent power and plenary power are not necessary to the disposition of this appeal.
For these reasons, I concur.