dissenting from order overruling motion for en banc hearing.
I dissent from the order overruling the motion to hear this case en banc.
Today’s opinion is contrary to an opinion issued by this Court, Johnson v. Smith, 857 S.W.2d 612, 618 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding). See also Kahn v. Garcia, 816 S.W.2d 131, 133 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding). In Johnson, this Court held the administrative judge of the Harris County civil district courts could not prohibit a party from filing pleadings in other Harris County civil district courts. 857 S.W.2d at 618. Today’s opinion holds that a district judge may enjoin the prosecution of a suit in a county court.
If we respect the principle of stare decisis, we must address the conflict between this ease and Johnson as a full court, and either overrule Johnson and affirm this ease, or affirm Johnson and reverse this case. Both cases cannot simultaneously be part of the common law of this Court.
A.
No rule 13 violation
To begin at the beginning, I disagree with the panel opinion that the lawsuit filed by the plaintiffs against James A. Armogida was groundless and frivolous. The plaintiffs’ suit is not a strong one, but it should have survived a challenge under Tex.R.Civ.P. 13.
There were two trials of the plaintiffs’ suit. In the first trial, which was set for a jury, the trial court granted a directed verdict against the plaintiffs before receiving any evidence. Upon reconsideration, the trial court told the parties he would sign the judgment on the “directed verdict” if the plaintiffs agreed to it; if they would not agree, he would grant a motion for new trial.
The plaintiffs, who wanted a new trial, refused to sign the judgment. Armogida, who represented the child as a guardian ad litem (not an attorney ad litem), met with the defendants to discuss the payment of his fees. Upon their promise to pay his fees, he signed the judgment on behalf of the plaintiffs. The plaintiffs then filed a motion for new trial, which the court granted after another hearing. The suit was tried to a jury, and the result was a verdict for the defendants.
The plaintiffs then filed suit against Armo-gida. The plaintiffs asserted a number of claims against Armogida. Among their claims, they alleged that Armogida, who had no authority to act as a lawyer for the minor, was acting outside the scope of his authority when he signed the judgment. They claim that by signing the first judgment, he put them to the additional cost and expense of filing the motion for new trial and the hearing. I agree.
The plaintiffs’ petition did not violate rule 13. To the extent it claimed damages from Armogida for his unauthorized action in signing the judgment, they had a cause of action against him for the cost and expense of setting the judgment aside. We should reverse on this ground, which would obviate the need to reach the other points of error.
*367B.
The counterclaim
In overruling the first 14 points of error, the panel overruled points that challenged both the motion for sanctions and the counterclaim, without distinguishing between them.
Armogida filed a motion for sanctions. In response, on December 18, 1992, the plaintiffs filed a motion for non-suit.1 About a month later, on January 13, 1993, Armogida filed a counterclaim. Armogida’s counterclaim was too late. Once the plaintiffs filed the request for non-suit, it deprived the court of jurisdiction over their suit, except for the pending motion for sanctions.
In point of error 5, the plaintiffs contend the trial court had no jurisdiction over the counterclaim because it was filed after they asked for a non-suit. The plaintiffs are correct.
The panel should sustain point of error 5. A plaintiff generally has an absolute right to a non-suit at the moment the motion is filed with the clerk. See BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990). The dismissal is effective as soon as the motion is filed with the court. Gibson v. Gibson, 653 S.W.2d 646, 647 (Tex.App.-Waco 1983, no writ). Although the dismissal does not preclude sanctions, it does preclude the filing of a counterclaim. Pleadings filed immediately after the non-suit are ineffective to continue the suit. See Avmanco v. City of Grand Prairie, 835 S.W.2d 160, 163-64 (Tex.App.-Fort Worth 1992, writ dism’d); Ault v. Mulanax, 724 S.W.2d 824, 828 (Tex.App.-Texarkana 1986, no writ).
Because the trial court had no jurisdiction over the counterclaim, the only remaining matters the trial court could have considered at the hearing were those matters in the motion for sanctions filed before the plaintiffs filed the non-suit. In the motion for sanctions, Armogida did not cite rule 13 or any other rule of procedure on which the trial court could base its order of sanctions. That motion merely asked the trial court to strike the plaintiffs’ pleadings, for an “appropriate monetary payment” to Armogida, and “for such other relief and penalty” as might be appropriate. I will discuss this further under points of error 19 and 20.
C.
No request for injunction
In points 19 and 20, the plaintiffs contend the trial judge abused his discretion by granting an injunction because Armogida did not request such relief. The panel overrules this point of error on the ground that Armo-gida made a request for all relief that would be appropriate.
1. The procedural issue
The panel erred when it stated that the plaintiffs did not object in the trial court. The panel’s opinion states:
Moreover, [the plaintiffs]’ brief did not state or show that they objected on this basis in the trial court. Thus, nothing is presented for review.
Op. at p. 365.
I disagree. On page 21 of the plaintiffs’ brief, with three cites to the record, the plaintiffs argue that the trial court did not have jurisdiction to grant the injunction. On page 27 of the statement of facts, the plaintiffs objected to the continuation of the hearing on the injunction with these words:
I’m going to object that injunctive relief cannot be granted without notice of hearing of said requested remedy.
The plaintiffs preserved the error. For the panel to state, as backup for its holding under these points, that the plaintiffs’ argument is not preserved, is belied by the record.
2. The substantive issue
In points of error 19 and 20, the plaintiffs complain the trial court violated their due process rights when it issued an injunction *368without pleadings and notice to them. I agree.
The panel overrules the points, stating that Armogida’s request for “further relief or penalty as may be appropriate” authorized the court to issue an injunction. I disagree. Nothing in rules 13 or 215 authorizes an injunction as a sanction without notice or pleadings.
Armogida did not plead for injunctive relief. To be entitled to an injunction, Armogi-da was required to plead and prove he had no adequate remedy at law. McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex.1984); Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex.App.-Houston [1st Dist.] 1992, no writ). Armogida did not meet the requirements for injunctive relief. Armogida had an adequate remedy at law — his legal remedy was to file motions for summary judgment on the grounds of res judicata and for sanctions in the county court.
A general prayer does not authorize more relief than that requested in the petition. A general prayer for relief authorizes a judgment only for relief within the court’s jurisdiction, justified by the proof, and consistent with the claims asserted in the petition. Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675, 677 (Tex.1979); Stoner v. Thompson, 578 S.W.2d 679, 683-84 (Tex.1979). Armogida’s pleadings did not give the plaintiffs fair notice, under rule 45, of the relief which the trial court granted.
The purpose of pleading is to give the adverse parties notice of each party’s claims and defenses, as well as notice of the relief sought. Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex.1991). Here, the motion for sanctions requested the specific relief of the dismissal of the suit with prejudice, compensation for the lost ad litem fee ($1,686), and attorney fees for time spent on defending the malpractice case.
I would sustain points of error 19 and 20.
D.
No jurisdiction to enjoin
In points of error 15 and 16, the plaintiffs contend the trial court did not have jurisdiction to enjoin them from prosecuting their claim against Armogida in the county court. I agree. The trial court’s power to impose just sanctions does not extend to issuing injunctions to control a party’s action in another court. The district court only had the authority to control the plaintiffs’ conduct in its court, not to determine the propriety of lawsuits filed in other courts.
The choice of sanctions is within the discretion of the court. TRCP 215(2)(b); Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986). The court’s discretion is limited by a requirement that the sanction be “just.” TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991).
There are limits to the types of sanctions a trial court may impose, even when the conduct justifies sanctions. Sanctions which interfere with the party’s right to communicate with the court are generally held to violate the “open courts” provision of the Texas Constitution. Tex. Const, art. 1, § 13. For example, the trial court cannot enjoin a party from filing pleadings without violating the “open courts” provision of the Texas Constitution. Johnson v. Smith, 857 S.W.2d 612, 618 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding) (the administrative judge over Harris County civil courts could not prohibit party from filing pleadings in other Harris County civil courts); Glass v. Glass, 826 S.W.2d 683, 687 (Tex.App.-Texarkana 1992, writ denied) (court could not prohibit party from filing other suits until she paid sanctions); see also Kahn v. Garcia, 816 S.W.2d 131, 133 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding) (court could not sanction party by prohibiting it from filing motions); Lehtonen v. Clarke, 784 S.W.2d 945, 946-47 (Tex.App.-Houston [14th Dist.] 1990, writ denied) (court could not strike post-trial motions as sanction and thereby foreclose the appeal); McKellar Dev. Group, Inc. v. Fairbank, 827 S.W.2d 579, 581 (Tex.App.-San Antonio 1992, no writ) (court could not dismiss a separate lawsuit as a sanction); O’Connor v. Sam Houston Medical Hosp., Inc., 807 S.W.2d 574, 576 (Tex.1991) (appellate court could not dismiss party’s appeal to punish it for post-judgment discovery abuse).
*369Under Tex. Const, art. 5, § 8, the district courts have the power to issue injunctions necessary to enforce their jurisdiction. A district court does not have the power to restrain a party in a county court action. See Wardlaw v. Savage, 191 S.W. 1176, 1178 (Tex.App.-Fort Worth 1916, no writ) (district court did not have jurisdiction to enjoin enforcement of erroneous judgment from county court); Gulf, C. & S.F. Ry. v. Cleburne Ice & Cold Storage Co., 83 S.W. 1100, 1101 (Tex.App.-Dallas 1904, no writ) (district court could not enjoin prosecution of suits in county court); see also Jones v. Stallsworth, 55 Tex. 138, 139 (Tex.1881) (district court could not enjoin justice of the peace). “Every judge is supreme and independent in his own sphere, and cannot be restrained in the discharge of his functions by the process of injunction.” Jones, 55 Tex. at 139. Even if the injunction is not against the county court, an injunction against a party in the county court infringes on the jurisdiction of the county court. Cleburne Ice, 83 S.W. at 1102.
The panel states that the injunction was appropriate under TransAmerican. Nothing in TransAmerican authorizes one court to order a party to dismiss a suit in another court.
I would sustain points of error 15 and 16.
E.
No request for other damages
In points of error 13 and 14, the plaintiffs complain that the trial court erred in assessing damages against Woodrow W. Miller, the attorney, for $15,000 and $5,000. I agree. As stated under part C of this dissent, the general prayer for relief did not authorize these sanctions.
I would sustain points of error 13 and 14.
On motion to hear the case en banc, Justices HUTSON-DUNN, MIRABAL, and O’CONNOR voted in favor of hearing the case en banc. Justice MIRABAL joins Section D of Justice O’CONNOR’S dissent and would sustain points of error 15 and 16.. The plaintiffs actually filed a motion for non-suit on December 17, 1992, but it listed the wrong court number in the style of the case. They then filed a second motion on December 18 with the correct number.