concurring with order overruling motion for en bane hearing.
I believe that the panel should sustain point of error five for the reasons so ably discussed in the dissent. The plaintiffs right to nonsuit precludes a subsequently filed counterclaim. See Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 163-64 (Tex.App.-Fort Worth 1992, writ dism’d).
Nevertheless, I vote against hearing this case en banc for two reasons. First, the panel’s failure to sustain point of error five has no impact on the result of the case; no relief was granted on the basis of the counterclaim. The final judgment grants relief only on the basis of the motion for sanctions, as indicated on the face of the judgment itself; it begins with the words, “Came on to be heard Defendants’ Motion for Sanctions ...” The judgment does not mention the counterclaim or grant relief on any basis other than the motion for sanctions.
Second, I respectfully disagree with the dissent’s assertions that the panel’s opinion conflicts with Johnson v. Smith, 857 S.W.2d 612 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding). The judge in Johnson prohibited the plaintiff from filing pleadings in any case in any Harris County civil district court until the plaintiff paid the sanctions in full. Id. at 616. This order “effectively preelude[d] [the plaintiff] from appealing any of the orders of which [he] complains from a final judgment.” Id. at 618. We found a violation of the open courts provision of the Texas Constitution. Id.
Here, the judge made no attempt to limit the plaintiffs right to file pleadings in any case except in a case “essentially identical” to the one before him at the time — i.e., a case “essentially identical” to one he found frivolous and sanctionable. Nor did the judge attempt to preclude the plaintiff from appealing this case. The court merely gave a final disposition to a case he found to be frivolous and sanctionable, effectively disposing of its necessarily equally frivolous and sanctionable twin at the same time. This case and Johnson are not in conflict.
*370With these observations, I concur with the order overruling the motion to hear this case en banc.