Specially concurring.
I agree with the majority’s determination, in Part I of the opinion, that the district court order of August 16, 1991, must be vacated, but I cannot adopt the majority’s rationale, which essentially substitutes for the district court’s findings of fact made without an adequate opportunity for presentation of evidence, different findings of fact made on appeal. In my view, with the litigation in its present posture, neither court should be addressing the factual issue of whether the parties intended the stipulation of July 10, 1989, to be a final, enforceable agreement.
As the majority opinion points out, until the district court sua sponte issued its order directing the parties to show cause why they should not be ordered to execute a written agreement conforming to the stipulation, neither party had taken a position that a settlement agreement had been breached, and neither party had sought to enforce it. Assuming, arguendo, that the July 10,1989, stipulation did constitute a binding settlement contract, it was not the trial court’s role to initiate enforcement proceedings. The Idaho Supreme Court has stated:
A rescission or repudiation of an executory compromise agreement by one party *638thereto confers a right of election upon the other party. He may accept such rescission and himself rescind the agreement and assert the original claim, or he may reject such rescission and maintain an action for enforcement of the compromise agreement.
Wilson v. Bogert, 81 Idaho 535, 543, 347 P.2d 341, 346 (1959). Thus, where a settlement agreement has been breached, the aggrieved party is allowed to choose whether to sue for enforcement of the settlement terms or to pursue that party’s original claims or defenses in the underlying action.
If the injured party does seek enforcement of the settlement contract, “such a contract stands on the same footing as any other contract and is governed by the same rules and principles as are applicable to contracts generally.” Id. at 542, 347 P.2d at 345. Thus, a claim for breach of a settlement agreement is a contract action that would seem to be subject to all the procedural standards that normally attend such claims, including the right to raise defenses, conduct discovery and have factual issues resolved by a trial on the merits.
Here, the Whittleseys and Bishops had not chosen to amend their pleadings to allege a breach of the settlement agreement, nor had they otherwise invoked the aid of the court to enforce the settlement. Instead, in the autumn of 1989 they requested a pretrial conference, apparently intending to go forward with the underlying litigation, but the district court responded with its show cause order. The court thus appropriated the right belonging to the Whittleseys and Bishops to decide whether to proceed with the litigation or to stand on the alleged settlement. In addition, the summary proceedings conducted on the show cause order, from which the district court concluded that a final settlement had been articulated in the stipulation of July 10, 1989, did not comply with the procedural rules governing litigation of civil claims, and it did not afford the parties a trial at which could be adduced all evidence that might bear upon the factual issue as to whether the parties intended the stipulation to be a final agreement. Because of these procedural irregularities, the district court’s order of August 16, 1991, should be vacated.
It is neither necessary nor appropriate for this Court to take the further step of addressing the factual question of the parties’ intent. The majority opinion compounds the district court’s error by looking at the incomplete evidence in the record, substituting its view of the evidence for that of the district court, and holding that no agreement was concluded even though the parties now advocating the agreement, the Whittleseys and Bishops, have had no proper opportunity to present evidence on that issue. This Court should, instead, merely vacate the district court’s August 16, 1991, order, and remand for further proceedings. If on remand the Whittleseys and Bishops wish to amend their pleadings to allege breach of a settlement agreement, they should have the opportunity to present and prove that claim, with Mr. Conley having a commensurate opportunity to disprove it.
I concur with Part II of the majority opinion regarding the district court’s contempt order.