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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 43432

DOUGLAS VISSER, a married man as to his

sole and separate property,

 Plaintiff-Respondent,

v.

AUTO ALLEY, LLC, an Idaho limited

liability company, CALVIN VISSER and

VICKI VISSER, as individuals and in their

capacity as Members and/or Managers of

Auto Alley, LLC,

 Defendants-Appellants.

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Boise, January 2017 Term

2017 Opinion No. 14

Filed: February 24, 2017

Stephen Kenyon, Clerk

Appeal from the District Court of the First Judicial District of the State of Idaho, 

Bonner County. Hon. Barbara A. Buchanan, District Judge.

The judgment of the district court is affirmed.

Berg & McLaughlin, Chtd., Sandpoint, for appellants. Toby McLaughlin argued.

Featherston Law Firm, Chtd., Sandpoint, for respondent. Brent Featherston 

argued.

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HORTON, Justice.

Auto Alley, LLC, Calvin Visser, and Vicki Visser appeal from the Bonner County district 

court’s order granting a writ of possession and quieting title to certain real property in Douglas 

Visser. Douglas was awarded the property in his divorce from Vicki in 2005. A dispute 

subsequently arose and in February of 2014, the parties entered into a stipulation that resulted in 

Vicki being permitted to continue to occupy part of the property known as “Lot 2.” A stipulated 

judgment was entered which provided that Douglas would convey Lot 2 to Vicki if she 

completely performed a number of specific obligations within specified time frames. When 

Vicki failed to completely perform those obligations, Douglas brought the instant motion to 

enforce the judgment and the district court granted his motion. Vicki timely appealed. We affirm 

and award Douglas attorney fees on appeal.
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I. FACTUAL AND PROCEDURAL BACKGROUND

Douglas and Vicki were divorced in 2005. As part of that divorce, Douglas was awarded 

the real property in dispute in this action. The property had been used as a wrecking yard. The 

property was encumbered by a promissory note and deed of trust from Douglas and Vicki to 

Joseph Lapham in the amount of $111,500 (the Lapham debt). In 2006, Calvin Visser, Douglas’s 

son, rented a portion of the property from Douglas to run a wrecking yard. Instead of paying rent, 

Douglas and Calvin agreed that Calvin would pay the monthly payments on the Lapham debt 

and the property taxes.

In 2007, Vicki moved back to Ponderay and began to operate the wrecking yard with 

Calvin. Calvin and Vicki operated the wrecking yard as Auto Alley, LLC. In 2013, Douglas 

learned that the property taxes were several years in arrears and that the county had plans to take 

the property by tax deed. $52,807.52 was due on taxes for 2009–2012. Douglas paid $14,591.74 

to prevent the property from being sold. Douglas also learned that the Lapham debt had 

increased from $111,500 to nearly $300,000. Douglas filed an action for breach of contract and 

waste in 2013 for Vicki’s failure to make payments on the Lapham debt and pay the taxes. The 

district court entered a temporary restraining order on July 3, 2013. At an Order to Show Cause 

hearing held on July 24, 2013, the parties stipulated to continuing the Temporary Restraining 

Order and enter into mediation. 

On February 18, 2014, the parties submitted a Stipulated Judgment to the district court. 

The Stipulated Judgment was entered by the district court on February 19, 2014. The Stipulated 

Judgment allowed for the property to be split into two lots and for Vicki to obtain title to Lot 2 

upon her fulfillment of certain obligations. The Stipulated Judgment required Vicki to pay half of 

the Lapham debt, remove all of her property from Lot 1, and commission an environmental study 

of Lot 1. Douglas was required to convey Lot 2 to Vicki “ONLY upon condition that 

[Vicki]...fully and completely perform all of the obligation as set forth hereafter.” (emphasis in 

original). The Stipulated Judgment also provided, “[i]f [Vicki] fail[s] and/or refuse[s] to make 

payments as set forth in the preceding section, [Vicki] must immediately vacate the premises 

described in Exhibit “A” immediately and [Douglas] shall have an immediate Writ of Possession 

from this Court as set forth above.” 

Almost immediately, Vicki failed to comply with the terms of the Stipulated Judgment 

and Douglas filed a Motion for Writ of Possession and Judgment for Quiet Title on April 3, 
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2014. The district court denied the motion, finding that Vicki had substantially complied with the 

terms of the Stipulated Judgment. On May 7, 2014, Vicki filed a motion claiming that Douglas 

had interfered with her ability to comply with the Stipulated Judgment. Following a hearing, the

district court declined to grant the motion. In March of 2015, Vicki filed a motion for contempt 

and Douglas filed a second motion seeking a writ of possession and quiet title. Following a 

hearing on both motions, the district court issued its memorandum opinion and order granting 

Douglas’s motion and denying Vicki’s. In its decision, the district court found that Vicki had 

failed to comply with the terms of the Stipulated Judgment and Douglas was entitled to a Writ of 

Possession as well as an order quieting title in the property. The district court denied Vicki’s 

contempt motion, finding that Douglas was not in contempt for failing to convey the deed to Lot 

2 to Vicki prior to her completion of the terms of the Stipulated Judgment. 

Vicki then filed a motion to reconsider. Vicki argued that the forfeiture of the property 

constituted an illegal penalty and that Douglas had prevented Vicki from fulfilling her 

obligations under the Stipulated Judgment. After a hearing, the district court denied Vicki’s 

motion to reconsider and entered judgment in favor of Douglas. Vicki timely appealed. 

II. STANDARD OF REVIEW

“The general rule is that a stipulated judgment is not subject to appellate review.” Fagen, 

Inc. v. Rogerson Flats Wind Park, LLC, 159 Idaho 624, 627, 364 P.3d 1189, 1192 (2016). “There 

is an exception to the general rule where the appellant(s) did not actually consent to the 

judgment, or the trial court lacked subject matter jurisdiction, or the judgment was obtained by 

fraud, or the judgment adversely affects the public interest.” Id.

“A trial court’s findings of fact will not be set aside on appeal unless they are clearly 

erroneous.” Pinnacle Engineers, Inc. v. Heron Brook, LLC, 139 Idaho 756, 758, 86 P.3d 470, 

472 (2004). “On appeal this Court examines the record to see if challenged findings of fact are 

supported by substantial and competent evidence.” Id. “Evidence is regarded as substantial if a 

reasonable trier of fact would accept it and rely upon it in determining whether a disputed point 

of fact has been proven.” Id. 

III. ANALYSIS

Vicki raises two substantive issues on appeal. First, Vicki argues that the forfeiture 

provision contained within the Stipulated Judgment constitutes an unenforceable penalty and the 
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district court erred in enforcing it. Vicki next argues that Douglas interfered with her ability to 

comply with the judgment. These issues will be addressed in turn.

A. Whether the forfeiture provision constituted an unenforceable penalty is not properly 

before this Court.

Vicki’s first argument is that the Stipulated Judgment contains an unenforceable penalty 

provision and the district court erred in enforcing it. Vicki premises this argument on the belief 

that a Stipulated Judgment is a contract. In support of this premise, Vicki cites to Jim & Maryann 

Plane Family Trust v. Skinner, 157 Idaho 927, 342 P.3d 639 (2015), where this Court said 

“[s]ince a stipulation is a contract, its enforceability is determined through contract principles.” 

Skinner, 157 Idaho at 933, 342 P.3d at 646. There, we were considering the proper way to 

interpret the language of the stipulation. Id. Similarly in Guzman v. Piercy, 155 Idaho 928, 318 

P.3d 918 (2013), this Court again applied contract principles to ascertain the meaning of

language in a stipulation. Guzman, 157 Idaho at 936, 318 P.3d at 926.

Here, Vicki is asserting that the Stipulated Judgment is unenforceable. While Vicki 

makes this assertion, she has not sought relief from the Stipulated Judgment nor has she appealed 

that judgment. Generally, judgments must be appealed within 42 days from the time they were 

entered. I.R.C.P. 83(b)(1)(A). However this Court recently stated that stipulated judgments are 

not subject to appellate review. Fagen, Inc., 159 Idaho at 627, 364 P.3d at 1192.

The general rule is that a stipulated judgment is not subject to appellate review. 

There is an exception to the general rule where the appellant(s) did not actually 

consent to the judgment, or the trial court lacked subject matter jurisdiction, or the 

judgment was obtained by fraud, or the judgment adversely affects the public 

interest.

Id. (internal citations omitted). 

In Fagen, the Defendants had stipulated that they were liable on a breach of contract 

claim but reserved the right to argue damages. Id. at 626, 364 P.3d at 1191. At the hearing on 

damages, the Defendants attempted to assert affirmative defenses that would shield them from 

liability. Id. When the district court refused to let Defendants argue the issue of liability, they 

appealed. Id. at 627, 364 P.3d at 1192. On appeal, this Court noted that unless the Defendants 

could show one of the exceptions listed above that the stipulated judgment was not subject to 

appellate review. Id. Once the Court found none of the exceptions applied they did not address 

any of the substantive issues raised on appeal. Id. “[W]e will not address the substantive issues 
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raised by Defendants on appeal. They simply seek on appeal to set aside the judgment to which 

they stipulated.” Id. 

The facts of this case are similar to the facts in Fagen. Like the Defendants in Fagen, 

Vicki entered into a stipulated judgment and now seeks to challenge its enforceability. Vicki has 

not alleged that she did not consent to the judgment or that it was obtained by fraud. Vicki has 

not argued that the district court lacked subject matter jurisdiction or that the judgment affects 

the public interest. Because there are no facts in the record that would suggest any of the 

exceptions apply, we will not consider Vicki’s claim that the judgment contained an improper 

forfeiture provision. 

Although we do not wish to dissuade parties from entering into stipulated judgments in 

order to resolve their disputes, this case should be viewed by attorneys as a cautionary tale. 

Practitioners must take particular care when advising clients who consider entering into a 

stipulated judgment. Attorneys and their clients should be aware that a stipulated judgment may 

be attacked only on limited grounds, unlike a settlement agreement, which is treated as a new 

contract, Mihalka v. Shepherd, 145 Idaho 547, 550–51, 181 P.3d 473, 476–77 (2008), and 

therefore subject to traditional contract defenses.

B. Did Douglas prevent Vicki from complying with the judgment?

Vicki also argues that Douglas interfered with her ability to comply with the judgment 

when he failed to convey Lot 2 to her. Vicki supports this argument by arguing that every 

contract contains a duty of good faith and fair dealing and that Douglas breached this duty when 

he failed to convey Lot 2 to Vicki so she could refinance her share of the Lapham debt using Lot 

2 as collateral. The district court found that because Vicki had not fully satisfied her obligations 

under the Stipulated Judgment, Douglas had no duty to convey the deed to Lot 2 to her. The 

district court was correct.

The Stipulated Judgment provides, “Plaintiff, Douglas Visser, will convey to the 

Defendant, Vicki Visser, that portion of the real property...designated as Lot 2 consisting of 6.2 

acres ONLY upon condition that Defendants, and each of them, fully and completely perform all 

the obligations set forth hereafter.” (emphasis in original). The Stipulated Judgment then 

identifies the conditions that Vicki was required to satisfy in order to receive the property. One 

of those conditions was that Vicki pay her half of the Lapham debt on or before June 30, 2014. It 

is undisputed that Vicki did not pay her half of the Lapham debt on or before June 30, 2014, as 
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required by the Stipulated Judgment. Because the Stipulated Judgment specifically provided that 

Douglas’s duty to convey Lot 2 would arise only upon Vicki’s performance of all her 

obligations, the district court’s determination that Douglas did not interfere with Vicki’s ability

to comply with the Stipulated Judgment is supported by substantial and competent evidence.

C. Attorney fees on appeal.

Both parties request attorney fees and costs on appeal. Because Vicki is not the prevailing 

party on appeal, she is not entitled to attorney fees and costs. The Stipulated Judgment provides:

“In the event of any action to enforce the terms of this Judgment, the prevailing party shall be 

entitled to a reasonable reimbursement of fees and costs payable by the non-prevailing party.” As 

the prevailing party, Douglas is entitled to attorney fees under the Stipulated Judgment. 

IV. CONCLUSION

We affirm the judgment of the district court and award attorney fees and costs on appeal 

to Douglas.

Chief Justice BURDICK and Justices EISMANN, JONES and BRODY, CONCUR.