Energy Transfer Partners, L.P. and Energy Transfer Fuel, L.P. v. Enterprise Products Partners, L.P. and Enterprise Products Operating Llc, 593 S.W.3d 732

ETP and Enterprise explored a “Double E” project (convert/extend the Old Ocean pipeline to move crude from Cushing to the Gulf) and jointly marketed it to shippers.
In 2011 they signed three written agreements (Confidentiality Agreement, Letter Agreement with a "Non-Binding Term Sheet," and Reimbursement Agreement) expressly stating no binding transaction would exist until "definitive agreements" were negotiated, executed and board-approved.
The parties worked together, ran open seasons for shipper commitments, and publicly marketed the project as a 50/50 JV; Enterprise later terminated the relationship and partnered with Enbridge to build the Wrangler pipeline.
ETP sued, claiming the parties had formed a partnership by conduct and that Enterprise breached the statutory duty of loyalty; a jury found a partnership and awarded substantial damages.
The court of appeals reversed, holding the Letter Agreement created conditions precedent to partnership formation (definitive, board-approved agreements) that were not met and that ETP failed to prove waiver.
The Texas Supreme Court affirmed, holding parties may contractually make conditions precedent conclusive as between themselves and that ETP failed to prove waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can parties by contract preclude partnership formation until conditions precedent occur?	TBOC Chapter 152 controls; intent is only one factor—parties cannot contract around the statutory totality-of-the-circumstances test.	Parties have freedom of contract; conditions precedent can conclusively prevent unintended partnerships as between the parties.	Yes. Parties may contract for conditions precedent that, as between them, conclusively preclude partnership formation; applied here.
Were the Letter Agreement conditions precedent waived by Enterprise?	ETP: parties’ conduct (marketing as a 50/50 JV, integrated work) shows waiver/partnership despite the written conditions.	Enterprise: no specific disavowal of the conditions; waiver must be proved and was not submitted to jury.	No. Waiver must be pleaded and proven (or submitted to jury); ETP did neither. Evidence cited was not directly probative of waiver of the specific conditions.
Did the alleged limited-purpose "market and pursue" arrangement qualify as a partnership under §152.051(b)?	ETP: the parties’ conduct created a partnership to market and pursue the pipeline.	Enterprise: the limited scope lacks the attributes of a §152 partnership; alternative defense.	Not decided by the Court (court affirmed on contract-conditions/waiver grounds and declined to address the alternative holding of the court of appeals).

Ingram v. Deere, 288 S.W.3d 886 (Tex. 2009) (explaining partnership-formation is a totality-of-the-circumstances test and limiting use of "expression of intent" evidence)
Coastal Plains Dev. Corp. v. Micrea, Inc., 572 S.W.2d 285 (Tex. 1978) (contractual disclaimers of partnership held persuasive when consistent with substance of arrangement)
Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex. 1976) (recognizing condition precedent may govern formation or performance of contracts)
Ames v. Great S. Bank, 672 S.W.2d 447 (Tex. 1984) (performance of a condition precedent can be waived)
Wood Motor Co. v. Nebel, 238 S.W.2d 181 (Tex. 1951) (quoting strong public policy favoring freedom of contract)