Energy Transfer Partners, L.P. and Energy Transfer Fuel, L.P. v. Enterprise Products Partners, L.P. and Enterprise Products Operating Llc ( 2020 )

IN THE SUPREME COURT OF TEXAS
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NO. 17-0862
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ENERGY TRANSFER PARTNERS, L.P. AND
ENERGY TRANSFER FUEL, L.P., PETITIONERS,
v.
ENTERPRISE PRODUCTS PARTNERS, L.P. AND
ENTERPRISE PRODUCTS OPERATING LLC, RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
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Argued October 8, 2019
CHIEF JUSTICE HECHT delivered the opinion of the Court.
The issue in this case is whether Texas law permits parties to conclusively agree that, as
between themselves, no partnership will exist unless certain conditions are satisfied. We hold that
it does and that the parties here made such an agreement. Accordingly, we affirm the judgment of
the court of appeals.1
I
Cushing, Oklahoma is a major trading hub for crude oil. For decades, the United States
imported most of its crude oil from abroad to its Gulf Coast refineries, where the oil was processed
1
529 S.W.3d 531 (Tex. App.—Dallas 2017).
and shipped north through Cushing. In 2008, new technology enabled oil production in the Dakotas
and Canada, resulting in oil being transported to Cushing from the north. But no pipeline existed to
move oil stored at Cushing south. An excess supply accumulated, driving down the price of oil sold
there. Sensing economic opportunity, major pipeline companies began exploring ways to move oil
south from Cushing.
Among them were ETP2 and Enterprise,3 competitors that are among the ten largest energy
companies in the United States. Enterprise co-owned with ConocoPhillips a pipeline called Seaway
that sent oil north to Cushing from the Texas Gulf Coast. Enterprise lobbied ConocoPhillips for
years to reverse the pipeline’s direction, but ConocoPhillips refused. Enterprise also talked to
Canadian pipeline company Enbridge about a joint project but to no result.
In March 2011, Enterprise approached ETP about converting a pipeline called Old Ocean
into one that could move oil south from Cushing. Old Ocean transports natural gas from Sweeny,
Texas, near the Coast, up to Maypearl, near Dallas. ETP owns the pipeline, but Enterprise holds a
long-term lease on it. Converting the pipeline to one for transporting oil and extending it the rest of
the way to Cushing would require a massive investment from the parties and committed customers
willing to pay a sufficient tariff to justify the investment.
The parties agreed to explore the viability of the project, which they dubbed “Double E”. In
three written agreements, they reiterated their intent that neither party be bound to proceed until each
2
We refer to petitioners Energy Transfer Partners, L.P. and Energy Transfer Fuel, L.P. together as “ETP”.
3
We refer to respondents Enterprise Products Partners, L.P. and Enterprise Products Operating LLC together
as “Enterprise”.
2
company’s board of directors had approved the execution of a formal contract. The Confidentiality
Agreement, signed in March 2011, recited that Enterprise and ETP had “entered into discussions
with each other in connection with a possible transaction involving a joint venture to provide crude
oil transportation [from Cushing to Houston] utilizing [the] Old Ocean Pipeline”. The agreement laid
out the parties’ rights and responsibilities with respect to confidential information exchanged during
the discussions and then stated:
The Parties agree that unless and until a definitive agreement between the Parties
with respect to the Potential Transaction has been executed and delivered, and then
only to the extent of the specific terms of such definitive agreement, no Party hereto
will be under any legal obligation of any kind whatsoever with respect to any
transaction by virtue of this Agreement or any written or oral expression with respect
to such a transaction by any Party or their respective Representatives, except, in the
case of this Agreement, for the matters specifically agreed to herein. . . .
In April, the parties also signed a Letter Agreement with an attached “Non-Binding Term
Sheet”. The Letter Agreement again recited that the parties were “entering discussions regarding a
proposed joint venture transaction involving the construction (or conversion, as applicable) and
operation of a pipeline to move crude oil” from Cushing to Houston, and that the “letter [was]
intended only to set forth the general terms of the Transaction between the Parties, . . . contained in
the term sheet attached”. The letter then stated:
Neither this letter nor the JV Term Sheet create any binding or enforceable
obligations between the Parties and, except for the Confidentiality Agreement . . . ,
no binding or enforceable obligations shall exist between the Parties with respect to
the Transaction unless and until the Parties have received their respective board
approvals and definitive agreements memorializing the terms and conditions of the
Transaction have been negotiated, executed and delivered by both of the Parties.
Unless and until such definitive agreements are executed and delivered by both of
the Parties, either [Enterprise] or ETP, for any reason, may depart from or terminate
3
the negotiations with respect to the Transaction at any time without any liability or
obligation to the other, whether arising in contract, tort, strict liability or otherwise.
The Non-Binding Term Sheet sketched out the basic features of the potential transaction and
envisioned that a “mutually agreeable Limited Liability Company Agreement would be entered into”
to govern the joint venture.
Finally, in April the parties also signed a Reimbursement Agreement that provided the terms
under which ETP would reimburse Enterprise for half the cost of the project’s engineering work.
That agreement, like the other two, recognized that the parties were “in the process of negotiating
mutually agreeable definitive agreements” for the project and stated that nothing in it would “be
deemed to create or constitute a joint venture, a partnership, a corporation, or any entity taxable as
a corporation, partnership or otherwise.” ETP’s pleadings acknowledge that “as of the date of [these
agreements] . . . the parties had not yet formed a partnership.”
By May, the parties had formed an integrated team to pursue Double E. The biggest piece
of the puzzle was obtaining sufficient shipping commitments. To do so, the parties needed to
convince shippers that their pipeline would be the first to market. During the spring and summer of
2011, they marketed Double E to potential customers as a “50/50 JV” and prepared engineering
plans for the project. The parties also explored the possibility of building a new pipeline from
scratch rather than retrofitting Old Ocean, but they continued to market the Old Ocean conversion
to potential customers.
A Federal Energy Regulatory Commission rule governing new interstate pipelines requires
an “open season” of 30 to 45 days in which shippers are asked to commit to daily barrel volumes
4
and tariffs. For Double E to be viable, the parties needed shipping commitments of at least 250,000
barrels a day for ten years at a tariff of $3.00 per barrel. The initial open season was unsuccessful.
Some shippers complained that the tariff was too high, others that the real need was for a pipeline
running all the way from Alberta to the Gulf Coast. The parties extended the open season twice
more. On the last day of the second extended open season, August 12, Chesapeake Energy Corp.
committed to ship 100,000 barrels daily. ETP was hopeful that Chesapeake’s commitment would
draw in other shippers who had been holding out. But days earlier, Enterprise had begun preparing
its exit by resuming negotiations with Enbridge. Enterprise ended its relationship with ETP orally
on August 15 and then in writing a few days later.
The next month, ConocoPhillips announced that it would sell its interest in the Seaway
pipeline. Enbridge bought it, making Enbridge co-owner of the pipeline with Enterprise. Enterprise
and Enbridge obtained an anchor shipper commitment from Chesapeake, which resulted in their
securing many additional commitments during the open season. Enterprise and Enbridge invested
billions to reverse the direction of the pipeline and make other modifications needed to move oil
from Cushing to the Gulf. The new pipeline, called Wrangler, opened in June 2012, and it has been
a financial success.
ETP sued. Its theory at trial was that despite the disclaimers in the parties’ written
agreements, they had formed a partnership to “market and pursue” a pipeline through their conduct,
and Enterprise breached its statutory duty of loyalty4 by pursuing the Wrangler project with
Enbridge. The jury answered “yes” to the question whether “ETP and Enterprise [had] create[d] a
4
TEX. BUS. ORGS. CODE § 152.205.
5
partnership to market and pursue a pipeline project to transport crude oil from Cushing, Oklahoma
to the Gulf Coast”. It answered “no” to the question whether Enterprise had complied with its duty
of loyalty. It found that $319,375,000 would compensate ETP for its damages and that the value to
Enterprise of the benefit gained as a result of its misconduct was $595,257,433. The trial court
reduced the disgorgement award to $150 million and otherwise rendered judgment on the verdict
for ETP for a total of $535,794,777.40 plus postjudgment interest.5
The court of appeals reversed and rendered judgment for Enterprise.6 The court concluded
that the Texas Business Organizations Code (TBOC) allows parties to contract for conditions
precedent to partnership formation; that the Letter Agreement in particular created two here that
were not met—(1) execution of “definitive agreements memorializing the terms and conditions of
the Transaction” that (2) have “received [each party’s] respective board approvals”; and that ETP
had the burden either to obtain a jury finding that the conditions were waived or to prove waiver
conclusively, which it failed to do.7 We granted ETP’s petition for review.8
5
ETP also sued Enbridge. The jury failed to find that Enbridge was part of a conspiracy to breach Enterprise’s
duty of loyalty to ETP. The trial court therefore rendered a take-nothing judgment against ETP on its claims against
Enbridge.
6
529 S.W.3d at 545.
7
See id. at 537–545. The court of appeals held alternatively that a partnership to “market and pursue” a pipeline
cannot be a partnership under the TBOC as a matter of law because §152.051(b) requires “an association of two or more
persons to carry on a business for profit” (emphasis added), and the limited-scope partnership pleaded by ETP did not
have the potential for profit. 529 S.W.3d at 539. Because we affirm on an alternative basis, we decline to address this
holding.
8
62 TEX. SUP. CT. J. 1311 (June 28, 2019).
6
II
Section 152.051(b) of the TBOC states that “an association of two or more persons to carry
on a business for profit as owners creates a partnership, regardless of whether: (1) the persons intend
to create a partnership; or (2) the association is called a ‘partnership,’ ‘joint venture,’ or other
name.” Under § 152.052(a),
Factors indicating that persons have created a partnership include the persons’:
(1) receipt or right to receive a share of profits of the business;
(2) expression of an intent to be partners in the business;
(3) participation or right to participate in control of the business;
(4) agreement to share or sharing:
(A) losses of the business; or
(B) liability for claims by third parties against the business; and
(5) agreement to contribute or contributing money or property to the
business.
Section 152.003 provides that “[t]he principles of law and equity and the other partnership
provisions supplement this chapter unless otherwise provided by this chapter or the other partnership
provisions.”
In Ingram v. Deere, we traced the evolution of Texas partnership law from the early common
law, which required proof of five factors to establish a partnership, to TBOC Chapter 152, which
7
sets out a nonexclusive list of factors to be considered in a totality-of-the-circumstances test.9 Under
§ 152.052(a)(2), “expression of an intent to be partners in the business” is just one factor of the
totality-of-the-circumstances test.10 We acknowledged in Ingram that the statute “does not by its
terms give the parties’ intent or expression of intent any greater weight than the other factors”.11
Moreover, under § 152.051(b), persons can create a partnership regardless of whether they intend
to. This provision derives from Section 202(a) of the Revised Uniform Partnership Act.12 A
comment to that section drafted by the Uniform Law Commission warns that parties “may
inadvertently create a partnership despite their expressed subjective intention not to do so.”13 But
in Ingram we expressed skepticism that the Legislature “intended to spring surprise or accidental
partnerships on independent business persons”.14 Can persons override the default test for
partnership formation in Chapter 152 by agreeing not to be partners until conditions precedent are
9
288 S.W.3d 886, 893–898 (Tex. 2009); id. at 895 (“The common law required proof of all five factors to
establish the existence of a partnership.” (citing Coastal Plains Dev. Corp. v. Micrea, Inc., 572 S.W.2d 285, 287 (Tex.
1978))); id. at 903–904 (“Whether a partnership exists must be determined by an examination of the totality of the
circumstances.”). In Ingram, the plaintiff’s partnership claim was governed by the Texas Revised Partnership Act
(TRPA), which was adopted in 1994, set out in the Revised Civil Statutes, and continued to apply to at least some
partnerships through 2009. Id. at 894 & n.4. In 2003, the Legislature replaced the TRPA with the TBOC, but we
acknowledged in Ingram that the “TRPA[’s] and the TBOC’s rules for determining partnership formation are
substantially the same.” Id. n.4; see also House Comm. on Admin., Bill Analysis at 1, Tex. H.B. 1156, 78th Leg., R.S.
(2003) (“Unless otherwise noted, the provisions of this Code are nonsubstantive revisions of comparable provisions
found in the . . . Texas Revised Partnership Act . . . .”).
10
See Ingram, 288 S.W.3d at 899.
11
Id.
12
See UNIF. P’SHIP ACT § 202(a) (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 1997) (“[T]he
association of two or more persons to carry on as co-owners [of] a business for profit forms a partnership, whether or
not the persons intend to form a partnership.”).
13
Id. § 202 cmt. 1.
14
Ingram, 288 S.W.3d at 898.
8
satisfied? Ingram did not involve such an agreement, and our discussion there of the role of intent
in the partnership-formation analysis did not contemplate one.15
Section 152.003 imports other “principles of law and equity” into the partnership-formation
analysis, and the use of the word “include” in § 152.052(a) makes the factors enumerated there
nonexclusive. Against this backdrop of statutory law is a well-developed body of common law that
“strongly favors parties’ freedom of contract.”16 Our decisions recognizing this policy are decades
older than the TBOC or its predecessor statute. In 1951, we quoted Sir George Jessel, “one of the
most influential commercial law and equity judges” in 19th century Britain,17 as saying:
[I]f there is one thing which more than another public policy requires it is that men
of full age and competent understanding shall have the utmost liberty of contracting,
and that their contracts when entered into freely and voluntarily shall be held sacred
and shall be enforced by Courts of justice. Therefore, you have this paramount public
policy to consider—that you are not lightly to interfere with this freedom of
contract.18
15
See id. at 899–901.
16
Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007).
17
George Jessel (jurist), WIKIPEDIA, https://en.wikipedia.org/wiki/George_Jessel_(jurist) (last visited Jan. 24,
2020).
18
Wood Motor Co. v. Nebel, 238 S.W.2d 181, 185 (Tex. 1951); see also St. Louis Sw. Ry. Co. of Tex. v. Griffin,
171 S.W. 703, 704 (Tex. 1914) (“The citizen has the liberty of contract as a natural right which is beyond the power of
the government to take from him. The liberty to make contracts includes the corresponding right to refuse to accept a
contract or to assume such liability as may be proposed.”).
9
We reinforce this public policy virtually every Court Term.19 Texas courts regularly enforce
conditions precedent to contract formation and reject legal claims that are artfully pleaded to skirt
unambiguous contract language, especially when that language is the result of arm’s-length
negotiations between sophisticated business entities.20
We have never squarely addressed whether parties’ freedom to contract for conditions
precedent to partnership formation can override the statutory default test, in which intent is a mere
factor. ETP points to the 1978 case of Coastal Plains Development Corp. v. Micrea, Inc., which
involved an agreement between a landowner and a company that it contracted with to sell lots for
a subdivision in Brazoria County.21 The contract included a disclaimer that the parties’ performance
of their obligations under the contract “shall not constitute the parties as partners in connection
therewith” or the formation of “a joint venture”.22 We acknowledged the rule that “when the record
demonstrates that the actual effect of the arrangement resulting from the agreement is to create a
19
See, e.g., Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 230 (Tex. 2019)
(“We have long recognized the strongly embedded public policy favoring freedom of contract. And, absent a compelling
reason, courts must respect and enforce the terms of a contract that the parties have freely and voluntarily made.”
(citations omitted)); Endeavor Energy Res., L.P. v. Discovery Operating, Inc., 554 S.W.3d 586, 595 (Tex. 2018); Nafta
Traders, Inc. v. Quinn, 339 S.W.3d 84, 95–96 (Tex. 2011).
20
Cf. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 656 (Tex. 2018)
(“[W]orld-savvy participants entering into a complicated, multi-million-dollar transaction should be expected to
recognize ‘red flags’ that the less experienced may overlook.”); El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389
S.W.3d 802, 812 (Tex. 2012) (“Contract enforcement is an ‘indispensable partner’ to the freedom of contract. Were we
to hold in MasTec’s favor, and conclude that El Paso must bear the risk of unknown underground obstacles under this
contract, we would render meaningless the parties’ risk-allocation agreement and ultimately prohibit sophisticated parties
from agreeing to allocate risk in construction contracts.” (quoting Fairfield Ins. Co. v. Stephens Martin Paving, L.P., 246
S.W.3d 653, 664 (Tex. 2008))); Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 180 (Tex. 1997) (enforcing
a disclaimer-of-reliance clause where “highly competent and able legal counsel represented both parties”, “the parties
were dealing at arm’s length”, and “both [parties were] knowledgeable and sophisticated business players”).
21
572 S.W.2d 285, 286 (Tex. 1978).
22
Id. at 286–287.
10
status different from that stated in the language of the contract, the parties’ designation will not
control.”23 But we also concluded that the partnership-disclaimer language “expressly negat[ed] any
intent on . . . behalf of the parties to create a joint venture or partnership.”24 We ultimately held that
the parties were not partners or participants in a joint venture “[b]ased upon [their] clearly expressed
intent” and “the absence of any . . . provision for the sharing of losses”.25 When Coastal Plains was
decided, the common law required the party claiming a partnership to prove five essential
elements.26 We merely held that two of them—intent to be partners and an agreement to share losses
—were missing. Coastal Plains does not help answer the question presented here.
Enterprise points to the 1931 case of Root v. Tomberlin,27 but it is not directly on point
either. Plaintiff Root claimed that defendant Wentz had formed a partnership with another
defendant, Tomberlin, and that Wentz was therefore jointly liable for money that Tomberlin owed
Root under a well-drilling contract. Under the Tomberlin-Root contract, Tomberlin pledged as
security for payment to Root a purchase order in which Wentz agreed to buy oil and gas leases
from Tomberlin, but only if certain conditions were satisfied. The conditions were not satisfied,
the transaction between Tomberlin and Wentz was not consummated, and Root was not fully paid.
Wentz argued that the conditions precedent in the purchase order precluded the formation of a
23
Id. at 287; see also id. at 288 (“Just as the words used by the parties in a contract do not necessarily control
the substance of the relationship, the terms used by the parties in referring to the arrangement do not control.”).
24
Id. at 287.
25
Id. at 288.
26
See id. at 287; Ingram v. Deere, 288 S.W.3d 886, 895 (Tex. 2009) (“The common law required proof of all
five factors to establish the existence of a partnership.” (citing Coastal Plains, 572 S.W.2d at 287)).
27
36 S.W.2d 596 (Tex. App.—El Paso 1931, writ ref’d).
11
partnership, and we signaled our agreement.28 But our explanation why no partnership was
established pointed also to other facts, such as that “there [was] no sharing of profits”.29 In any
event, Root did not involve a contractual provision like those here, which contemplate the potential
creation of a business entity, but not until specific conditions had been performed.
ETP argues that the TBOC’s totality-of-the-circumstances test controls partnership formation
to the exclusion of the common law and that the parties’ intent with respect to the creation of a
partnership is just one factor to be weighed with the others in § 152.052(a). The submission of the
case to the jury reflects this theory. Question 1 instructed the jury on the rule of § 152.051(b) that
parties can form a partnership even if they do not intend to and on the multi-factor test in
§ 152.052(a). Question 1 also told the jury that “[n]o single fact may be stated as a complete and
final test of partnership.” It then asked the jury whether a partnership was created. Under ETP’s
view, submitted to the jury, parties cannot through contract language preclude the creation of a
partnership until a specific condition has occurred or been performed. ETP argues that the key to
avoiding an accidental partnership is to “avoid the conduct that establishes a partnership under the
statute.”30
Enterprise urges the primacy of freedom of contract and argues that if parties cannot by
contract protect themselves from the creation of an unwanted partnership, detrimental economic
consequences to the State and constant litigation will ensue. The Court has received amicus briefs
28
See id. at 601.
29
Id. at 601–602.
30
Pet. Br. at 24.
12
weighing in on both sides from academics, industry representatives, a former legislator, and others.31
We maintain our view expressed a decade ago in Ingram that the Legislature did not “intend[] to
spring surprise or accidental partnerships” on parties.32 Section 152.003 expressly authorizes
supplementation of the partnership-formation rules of Chapter 152 with “principles of law and
equity”, and perhaps no principle of law is as deeply engrained in Texas jurisprudence as freedom
of contract. We hold that parties can contract for conditions precedent to preclude the unintentional
formation of a partnership under Chapter 152 and that, as a matter of law, they did so here.33
III
An agreement not to be partners unless certain conditions are met will ordinarily be
conclusive on the issue of partnership formation as between the parties.34 “Performance of a
31
Academics: Professor Christine Hurt and Dean D. Gordon Smith, J. Reuben Clark School of Law at Brigham
Young University, supporting petitioners; David Radunsky, University of North Texas College of Law, supporting
petitioners; Joseph K. Leahy, South Texas College of Law, supporting petitioners; David Simon Sokolow, The
University of Texas School of Law, supporting respondents.
Industry: Bobby Riley, supporting petitioners; John C. Ale, supporting respondents; Targa Resources Corp.,
supporting respondents; Plains Pipeline, L.P., supporting respondents; the Chamber of Commerce of the United States
of America, the American Fuel & Petrochemical Manufacturers, and the Texas Association of Business, supporting
respondents; Hugh Rice Kelly, supporting respondents.
Legislature: Hon. Jim Rudd, supporting petitioners.
Others: Associated Builders and Contractors of Texas, Inc., supporting respondents; Houston Realty Business
Coalition, supporting respondents; Austin Economic Club, supporting petitioners.
32
Ingram v. Deere, 288 S.W.3d 886, 898 (Tex. 2009).
33
The court of appeals limited its analysis to the Letter Agreement because it “contains the clearest language”.
529 S.W.3d 531, 537 (Tex. App.—Dallas 2017). We reject ETP’s unpersuasive arguments that (1) the Letter Agreement
does not create conditions precedent to partnership formation because the “Non-Binding” nature of the attached Term
Sheet rendered the conditions precedent in the Agreement nonbinding too; (2) the conditions stated in the Agreement
are not enforceable because the Agreement contemplates a future contract; and (3) Texas law does not recognize
conditions precedent to contract formation. Cf. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.
1976) (“A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an
existing agreement.”).
34
Such an agreement would not, of course, bind third parties, and we do not consider its effect on them.
13
condition precedent, however, can be waived or modified by the party to whom the obligation was
due by word or deed.”35 We agree with the court of appeals that under Texas Rule of Civil Procedure
279, ETP was required either to obtain a jury finding on waiver or to prove it conclusively.36 It has
done neither.
In Ingram, we explained that when analyzing the second factor of § 152.052(a)’s totality-of-
the-circumstances test, “expression of an intent to be partners in the business”:
Courts should only consider evidence not specifically probative of the other factors.
In other words, evidence of profit or loss sharing, control, or contribution of money
or property should not be considered evidence of an expression of intent to be
partners. Otherwise, all evidence could be an “expression” of the parties’ intent,
making the intent factor a catch-all for evidence of any of the factors, and the
separate “expression of intent” inquiry would be eviscerated.37
Similarly, where waiver of a condition precedent to partnership formation is at issue, only
evidence directly tied to the condition precedent is relevant. Evidence that would be probative of
expression of intent under § 152.051(a)—such as “the parties’ statements that they are partners, one
party holding the other party out as a partner on the business’s letterhead or name plate, or in a
signed partnership agreement”38—is not relevant. Nor is evidence that would be probative of any
35
Ames v. Great S. Bank, 672 S.W.2d 447, 449 (Tex. 1984).
36
See TEX. R. CIV. P. 279 (“Upon appeal all independent grounds of recovery or of defense not conclusively
established under the evidence and no element of which is submitted or requested are waived.”); Island Recreational
Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 554 (Tex. 1986) (“We recognize that waiver is an
independent ground of recovery or defense and must be pleaded and proved as such.”); Washington v. Reliable Life Ins.
Co., 581 S.W.2d 153, 157 (Tex. 1979) (“Waiver was an affirmative defense upon which Washington had the burden of
proof. No special issues were requested or submitted to the jury on this point. As stated above, a party generally waives
an issue upon which he relies by failure to request its submission.” (citations omitted)).
37
288 S.W.3d at 900.
38
Id.
14
of the other § 152.052(a) factors. Otherwise, a party in ETP’s position could claim waiver in
virtually every case.
ETP has not pointed to any evidence that Enterprise specifically disavowed the Letter
Agreement’s requirement of definitive, board-of-directors-approved agreements or that Enterprise
intentionally acted inconsistently with that requirement.39 ETP’s challenge to the court of appeals’
holding is premised on the argument we have already rejected that the effect of the conditions
precedent in the Letter Agreement was subsumed in Question 1. The only record evidence that ETP
points to—the parties held themselves out as partners and worked closely together on the Double
E project—is not relevant to the issue of waiver of definitive, board-approved agreements.
* * * * *
We hold that parties can conclusively negate the formation of a partnership under Chapter
152 of the TBOC through contractual conditions precedent. ETP and Enterprise did so as a matter
of law here, and there is no evidence that Enterprise waived the conditions. The judgment of the
court of appeals is affirmed.
Nathan L. Hecht
Chief Justice
Opinion delivered: January 31, 2020
39
LaLonde v. Gosnell, ___S.W.3d___, ___ (Tex. 2019) (waiver can be shown by “intentional conduct
inconsistent with claiming [a known] right”).
15