No. 92-613 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

TEAL, INC., a corporation 

d/b/a COOK TRAVEL, 

Plaintiff and Respondent, 

-vsBARBARA WIEDRICH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Maurice R. Colberg, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donna K. Davis; Matovich, Addy & Keller, Billings 

Montana 

For Respondent: 

Earl J. Hanson; Hanson & Todd, Billings, Montana 

Richard S. Mandelson; Baker & Hostetler, Denver, 

Colorado 

Laurence R. Martin, Randall G. Nelson; Felt, Martin 

Frazier & Lovas, Billings, Montana 

John L. Pratt; Ask & Pratt, Roundup, Montana 

Filed: 

Submitted on Briefs: June 17, 1993 

Decided: JULY 13, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Barbara Wiedrich appeals from an order entered by the 

Thirteenth Judicial District Court, Yellowstone County, dismissing 

the action against her with prejudice but awarding no attorney's 

fees. We affirm. 

The issue on appeal is whether the District Court abused its 

discretion when, in dismissing the action against defendant, it 

refused to award her attorney's fees. 

Defendant/appellant Barbara Wiedrich was a travel agent and 

officer manager at Rainbow Travel, Inc. (Rainbow), a travel agency 

in Billings, Montana. Dale and Joan Galles (collectively, Galles) 

were the sole stockholders of Rainbow. Late in 1991, Teal, Inc. 

(Teal), doing business as Cook Travel, entered into negotiations 

with Galles to purchase all of Rainbow's issued and outstanding 

stock; Ted Fink negotiated on behalf of Teal. The parties met 

several times and exchanged draft buy-sell agreements. Rainbow's 

employees did not have employment contracts and, essentially, 

worked under month-to-month employment arrangements. Thus, Rainbow 

and Galles could not guarantee that the employees would sttransfer" 

to Cook Travel after Teal's purchase of Rainbow; it was Fink's 

understanding, however, that those employees would move to the Cook 

Travel offices. 

On the morning of January 2, 1992, the proposed closing date 

for the stock sale, both Dale Galles and Fink discovered for the 

first time that Wiedrich and another employee, Mary Goffena, had 

resigned their employment with Rainbow pursuant to letters dated 

2 
December 27, 1991. It was later ascertained that Wiedrich had 

accepted employment with a competitor travel agency, Boardwalk 

Travel, on December 27, to begin on January 2, 1992. Fink and 

Galles also discovered that on December 30, subsequent to her 

resignation letter but while still employed by Rainbow, Wiedrich 

had mailed a letter to Rainbow's customers informing them of the 

sale, enclosing each customer's frequent flyer information 

accumulated by Rainbow, and advising that she would "call you after 

the 1st of January." The letter was not authorized by Galles and, 

given Wiedrich's resignation from Rainbow, it was clear that any 

follow-up calls by Wiedrich would not be made from either Rainbow 

or Cook. Teal refused to close on the purchase of the Rainbow 

stock. 

On February 4, 1992, Teal filed suit against The Travel 

Company of Montana, Inc. (doing business as Boardwalk Travel) and 

its manager M. Kathleen Rice, Mary Goffena and Barbara Wiedrich. 

The complaint alleged intentional interference with business 

relationships and tortious interference with the proposed sale and 

purchase of Rainbow by virtue of specified acts and misconduct, 

including Wiedrich's letter to Rainbow's customers. On May 15, 

Teal dismissed defendant Goffena without prejudice pursuant to Rule 

41(a)(l), M.R.Civ.P. On July 10, Teal and defendants The Travel 

Company and M. Kathleen Rice stipulated to dismissal with 

prejudice, stating that the action between those parties was fully 

and finally settled; the court ordered the dismissal. 

On September 10, 1992, Teal moved to dismiss Wiedrich without 
prejudice pursuant to Rule 41(a)(2), M.R.Civ.P.; it later converted 

the motion to one for dismissal with prejudice. Wiedrich objected 

to dismissal unless "curative conditions," including her attorney's 

fees, were imposed. The District Court dismissed the action 

against Wiedrich with prejudice, but awarded no attorney's fees. 

This appeal followed. 

Did the District Court abuse its discretion when, in dismissing the 

action against defendant, it refused to award her attorney's fees? 

The District Court dismissed the action against Wiedrich with 

prejudice pursuant to Rule 41 (a) (2) , M.R. Civ. P. , but refused to 

award Wiedrich attorney's fees. Wiedrich asserts error, relying on 

Petritz v. Albertsons, Inc. (1980), 187 Mont. 102, 608 P.2d 1089, 

and federal cases interpreting the identical Federal Rule of Civil 

Procedure. 

Rule 41(a)(2), M.R.Civ.P., provides in pertinent part: 

[A]n action shall not be dismissed at the plaintiff's 

instance save upon order of the court and upon such terms 

and conditions as the court deems proper. . . . Unless 

otherwise specified in the order, a dismissal under this 

paragraph is without prejudice. 

The wording of the rule is clear that appropriate terms and 

conditions on dismissal by order of the court are matters within 

the court's discretion. Indeed, we have determined that, in 

granting a motion for voluntary dismissal under Rule 41(a) (2), a 

district court "is vested with wide discretion in determining what 

conditions may attach to the dismissal[:]" a court may require the 

payment of costs and attorney's fees or it may choose to impose no 

conditions at all. Petritz, 608 P.2d at 1092. Our standard in 
reviewing discretionary trial court rulings is whether the court 

abused its discretion. Steer, Inc. v. Deptt of Revenue (1990), 245 

Mont. 470, 475, 803 P.2d 601, 604. 

Here, the District Court dismissed with prejudice and required 

Teal to pay Wiedrichls costs. Under the facts and record before 

us, we cannot conclude that the court abused its discretion in 

refusing to award attorney's fees. 

The District Court's refusal to award attorney's fees was 

based in large part on its determination that Teal had at least a 

colorable claim against Wiedrich and, thus, that the litigation 

could not be deemed frivolous. Wiedrich challenges a number of the 

allegations contained in Teal's complaint against her as either 

known misrepresentations or so lacking in foundation that 

reasonable investigation prior to filing the complaint would have 

indicated that they were baseless. On this basis, she strenuously 

asserts that Teal's complaint constituted abusive and harassing 

litigation for which she was entitled to attorney's fees upon 

voluntary dismissal, relying primarily on federal cases 

interpreting Rule 41(a) (2) of the Federal Rules of Civil Procedure. 

See, e.g., Klar v. Firestone Tire & Rubber Co. (1953), 14 F.R.D. 

176; Bishop v. West American Ins. Co. (1982), 95 F.R.D. 494. 

We agree with Wiedrich that the "upon such terms and 

conditions as the court deems proper" language in Rule 41(a)(2) is 

intended to end "abusive practices whereby defendants were put to 

expense by plaintiffs who had no real object in mind other than . 

. . harassment." a, 14 F.R.D. at 176. Stated differently, a 
purpose of awarding curative relief under the rule is "to deter 

vexatious litigation." Bishop, 95 F.R.D. at 495. 

The flaw in Wiedrich's argument is that it ignores the 

District Court's determination that Teal had at least a colorable 

claim against her and, therefore, that the litigation could not be 

deemed frivolous. Wiedrich does not specifically challenge or 

attack this determination; moreover, the record contains sufficient 

evidence to support a determination that at least an arguable case 

could be made that Wiedrich interfered with Teal's contractual 

relationship and prospective business advantage with regard to the 

purchase of Rainbow's stock when she wrote the letter to Rainbow 

customers stating that she would contact them after January 1, 

1992. The District Court's determination, together with its 

corresponding determination that the claim could not be deemed 

frivolous, in essence constitutes a determination that the 

litigation was not harassing or vexatious and removes this case 

from the ambit of those where attorney's fees were properly awarded 

for harassing or vexatious litigation. 

Bishoo and , relied on by Wiedrich, are appropriate 

authority for the salutary purposes of Rule 41(a) (2). However, 

they do not support Wiedrich's position that she is entitled to 

attorney's fees here. The issue in Bishoo was whether "costs" 

under the rule were limited to statutory taxable costs or included 

removal costs; thus, Bishop is inapposite on the facts. In -, 

the trial court determined that "[nlo such abusive intent appears 

in the instant case," dismissed the action without prejudice so 
that plaintiff could commence a new action in Ohio, and awarded 

costs and a minimal attorney's fee. -, 14 F.R.D. at 176-77. - bears some similarity to the case before us in that neither 

involved abusive intent or vexatious litigation; in -, however, 

the action was dismissed without prejudice. Nothing in provides authority for Wiedrich's claim of entitlement to attorney's 

fees here, particularly in light of the broad discretion vested in 

trial courts under Rule 41(a)(2), M.R.Civ.P., and Petritz. 

Nor does Petritz, the leading Rule 41(a)(2) case in Montana, 

support Wiedrich's position. In Petritz, the plaintiff moved for 

voluntary dismissal without prejudice on the day before trial, some 

twenty months after the complaint was filed and after extensive 

pretrial discovery and trial preparation by the defense. The court 

ordered the dismissal without prejudice. We determined, "in view 

of the lateness of plaintiff's motion for dismissal, and the 

extensive preparation on the part of the defense" that the district 

court should have attached a more reasonable award of attorney's 

fees as a condition to the dismissal. Eetritz, 608 P.2d at 1094. 

The facts now before us differ significantly from those in 

Petritz. Here, Teal moved for dismissal seven months after filing 

the complaint and eight and one-half months before the case was 

scheduled for trial. In addition, discovery was relatively limited 

here as compared to the extensive discovery and pretrial motions, 

hearings and trial preparation undertaken by the defendant in 

Petritz. We also note that the Petritz action was dismissed 

without prejudice and the plaintiff therein filed another action 
six weeks later. 

We hold that the District Court did not abuse its discretion 

when, in dismissing the action against defendant, it refused to 

award her attorney's fees. 

Affirmed . 

we concur: ---, 
July 13, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Donna K. Davis 

MATOVICH, ADDY & KELLER, P.C. 

Suite 225, Petroleum Building 

2812 First Ave. North 

Billings, MT 59101 

Earl J. Hanson 

WSON & TODD 

Suites 214-215 

Transwestern I 

404 North 31st Street 

Billings, MT 59101 

Richard S. Mandelson 

BAKER & HOSTETLER 

Suite 1100 

303 East 17th Ave. 

Denver, CO 80203 

Laurence R. Martin 

Randall G. Nelson 

FELT, MARTIN, FRAZIER & LOVAS 

450 Hart-Albin Building 

208 North 28th Street 

Billings, MT 59101 

John L. Pratt 

ASK & PRATT 

226 Main 

Roundup, MT 59072 

ED SMITH 
CLERK OF THE SUPREME COURT 

STATE qF MOPJT4NA