It is consistent with our decisions reviewing motions granted pursuant to 52(c)'s predecessor, Rule 41(b)(2). See New England Educ. Training Serv., Inc. v. Silver St. P'ship, 156 Vt. 604, 611, 595 A.2d 1341, 1344-45 (1991). ¶ 11. While plaintiffs accept this deferential standard of review, they argue that the trial court "relied upon an erroneous view of the applicable law," and that this Court should consider whether, at trial, plaintiffs presented sufficient evidence to establish a prima facie showing of successor liability.

" Big G Corp., 536 A.2d at 594 (holding if there is an enforceable written contract "[t]he doctrine of promissory estoppel is not applicable."); see also LoPresti v. Rutland Reg'l Health Servs., Inc., 2004 VT 105, ¶ 47, 177 Vt. 316, 337, 865 A.2d 1102, 1119 (holding that the trial court correctly applied the "well-established rule that promissory estoppel will not apply when the relationship of the parties is governed by a contract."). Conversely, because the parol evidence rule applies only to written agreements, New England Educ. Training Serv., Inc. v. Silver St. P'ship, 595 A.2d 1341, 1344 (Vt. 1991) ("The parol evidence rule is applicable to exclude evidence of a prior or contemporaneous oral agreement offered to vary or contradict the terms of a written agreement."), it will have no application if the Escrow Agreement is deemed unenforceable.

As a result, the Vermont Supreme Court has refused to enforce contract provisions that are penalties in nature. See Highgate Assoc., Ltd. V. Merryfield, 597 A.2d 1280, 1282-84 (Vt. 1991)(invalidating liquidated damages provision found to be an unlawful penalty); New England Educ. Training Serv. Inc. v. Silverstreet Partnership, 595 A.2d 1341, 1346 (Vt. 1991)(same). Burlington argues that deinstallation would be a penalty for the City's breach, rather than compensation.

(1) [B]ecause of the nature or subject matter of the agreement, damages arising from a breach would be difficult to calculate accurately; (2) the sum fixed as liquidated damages must reflect a reasonable estimate of likely damages; and (3) the provision must be intended solely to compensate the nonbreaching party and not as a penalty for breach or as an incentive to perform.Id. at 388 (quoting New England Training Serv., Inc. v. Silver St. P'ship, 595 A.2d 1341, 1346 (Vt. 1991). The Court held that real estate contracts fulfill the first criterion because "damages incurred from a breach of a real estate contract are hard to anticipate."

(3) the provision must be intended solely to compensate the nonbreaching party and not as a penalty for breach or as an incentive to perform. Renaudette v. Barrett Trucking Co., 167 Vt. 634, 635 (1998) (citing New England Educ. Training Serv., Inc. v. Silver Street Partnership, 156 Vt. 604, 613 (1991)). A judgment as to whether those three criteria have been met must be made by reference to the facts at the time the contract is entered into, not to the circumstances as they stand after the alleged breach.

That the parties may have agreed to another restriction, not expressed in the writing, is supplementary, not contradictory. See Restatement § 217; The Cantamar, L.L.C. v. Champagne, 142 P.3d 140, 147–48 (Utah Ct.App.2006) (reversing trial court's grant of summary judgment against borrower who contended that loan agreement was not fully integrated and that there was oral agreement that was not required to repay loans until borrower obtained $15 million investment in his business); Lyon v. Lyon, 253 A.D.2d 415, 675 N.Y.S.2d 896, 896–97 (N.Y.A.D.2d Dept.1998) (trial court “properly interpreted the mortgage and note by referring to the judgment of divorce and other documents”); New Eng. Educ. Training Serv., Inc. v. Silver St. Partnership, 156 Vt. 604, 595 A.2d 1341, 1344 (Vt.1991) (“[S]pecial-purpose documents [such as notes] seldom embody a complete statement of the agreement between the parties.... Thus, it was proper for the court to consider the purchase and sale agreement and its extensions, as well as the surrounding circumstances of the parties”). I also am satisfied, based on the nature of the transaction as a whole that the second restriction from the Standby Agreements simply may have been omitted from the Proietto–Green Goblin Note notwithstanding the parties' intent to include the provision.

” The clause then goes on, in capital letters, to provide as follows: “THIS IS AN ADEQUATE LIQUIDATED DAMAGE AND IS IN NO WAY INTENDED AS A PENALTY, ADMISSION OF NEGLIGENCE OR DEFAULT SETTLEMENT.” Liquidated damages provisions are valid if they meet a three-part test: “(1) because of the nature or subject matter of the agreement, damages arising from a breach would be difficult to calculate accurately; (2) the sum fixed as liquidated damages must reflect a reasonable estimate of the likely damages; and (3) the provision must be intended to compensate the nonbreaching party and not as a penalty for breach or as an incentive to perform.” New England Educ. Training Serv., Inc. v. Silver St. P'ship, 156 Vt. 604, 613, 595 A.2d 1341, 1346 (1991); see also Highgate Assocs., Ltd. v. Merryfield, 157 Vt. 313, 316–20, 597 A.2d 1280, 1282–84 (1991) (applying the test). ¶ 25.

mem.), available at http://www.vermontjudiciary.org/d-upeo/upeo.aspx. Further, the court's order does not support plaintiff's assertion that the court was warranted in dismissing with prejudice on equitable grounds given what homeowner characterizes as inconsistent and "likely fraudulent filings" submitted by U.S. Bank. See New Eng. Educ. Training Serv., Inc. v. Silver St. P'ship, 156 Vt. 604, 613, 595 A.2d 1341, 1345-46 (1991) (affirming dismissal of foreclosure action where recovery on the underlying note would be unconscionable). While the trial court may have had discretion to exert its equitable powers in this manner, no findings were made to support such a conclusion, and we will not speculate on a matter of such importance.

Rather, plaintiffs offered them to provide the jury with evidence concerning the nature of the contract, and to assist it in determining whether the agreement was a strict lender-borrower deal or a joint-venture. See New England Educ. Training Serv., Inc. v. Silver Street Partnership, 156 Vt. 604, 610, 595 A.2d 1341, 1344 (1991) (noting evidence to ascertain true character of mortgage agreement rather than to vary terms not barred by parol evidence rule). Thus, the documents were not rendered inadmissible by the parol evidence rule.

When reviewing a court's grant of a Rule 41(b)(2) motion, we must consider "whether the court's fact findings are clearly erroneous, viewing the evidence in the light most favorable to the prevailing party." New England Educ. Training Serv. v. Silver St. Partnership, 156 Vt. 604, 611, 595 A.2d 1341, 1344-45 (1991) (citing Blais v. Blowers, 136 Vt. 488, 489, 394 A.2d 1124, 1124 (1978)). Schnabel's assertion that the court erred in granting Nordic Toyota's motion for entry of judgment on the issue of intentional infliction of emotional distress appears in both of his briefs "unaccompanied by facts, law, or reasoning, and therefore need not detain us."