CHAPTER 4A LETTERS OF INTENT - STORIES FROM THE COURTHOUSE

• Jurisdiction: United States

Oil & Gas Agreements: Purchase & Sale Agreements
(May 2016)
CHAPTER 4A
LETTERS OF INTENT - STORIES FROM THE COURTHOUSE
Mike Lynn
Partner
Lynn Pinker Cox & Hurst, LLP
Dallas, TX

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MIKE LYNN is a partner with Lynn Pinker Cox & Hurst, LLP, in Dallas, Texas. One of the best-known and most respected litigators in Texas, Mike brings unmatched experience to trying cases. He has tried to verdict more than 98 civil and criminal jury trials and handled over 100 non-jury, arbitration, and injunction matters in this distinguished career, winning significant returns for his clients. Recently Mike led a team of lawyers on behalf of Energy Transfer Partners to obtain one of the largest if not the largest verdict in Dallas-Fort Worth history. Mike, the founder of the firm, believes one of the keys to his firm's success is that "[w]e are an elite, highly-motivated group of business trial lawyers. We like to say we are the 'special forces of litigation.' We are prepared, experienced, tough, relentless, and creative." Mike has also published numerous articles and is a frequent speaker on legal topics. He has taught law classes at Southern Methodist University, is active in a number of professional organizations, including the American Law Institute, has served as Co-Chair on a number of Committees of the American Bar Association, most recently The Federal Rules Task Force, and was co-editor of The Litigation Section's Business Tort Jury Instruction Project, 2nd Edition. Mike served as Council Member on The Litigation Section of the ABA and presently is serving as Co-Chair Litigation Institute of Trial Training Litigation Section, ABA. Mike has been recognized as one of the "2015 Top 100 Trial Lawyers in America" by Benchmark Litigation; a "Litigation Star" by Benchmark Litigation from 2013-2015; one of the "500 Top Litigators in America" by Lawdragon in 2006, 2010, 2011, and 2015; in the USA Guide to Leading Lawyers - General Commercial Litigation (Texas) Lawyers; "Best Lawyers in America" 2012-2016; selected to "100 Best Lawyers in Texas" 2014; and was named a "Texas Super Lawyer" consecutively since 2003. He is married to the Honorable Barbara M.G. Lynn, United States District Judge, Northern District of Texas. They have two children. He received his undergraduate degree from the University of Virginia and his law degree from Southern Methodist University.

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No. 05-14-01383-CV

In the Fifth Court of Appeals Dallas, Texas

Enterprise Products Partners LP et al.,

Appellants,

v.

Energy Transfer Fuel Partners, LP et al.,

Appellees

From the 298th District Court of Dallas County

BRIEF OF PROFESSOR CHRISTINE HURT AS AMICUS CURIAE IN SUPPORT OF APPELLEES

Christine Hurt

J. Reuben Clark Law School

Brigham Young University

JRCB 438

Provo, Utah 84602

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TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

DISCUSSION

1. The de facto partnership doctrine is not disfavored in Texas law

2. The de facto partnership doctrine arises from agency law and is not dependent on the parties' specific intentions or explicit agreement

3. Moreover, a disclaimer of partnership is not dispositive

4. Public policy necessitates the existence of a robust de facto partnership doctrine

CONCLUSION

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

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TABLE OF AUTHORITIES

Cases

Arnold v. Erkmann,934 S.W.2d 621 (Mo. Ct. App. 1996)

Gault v. First Nat'l Bank of Hereford,541 S.W.2d 235 (Tex. Civ. App. - Amarillo 1976, no writ)

Giddings v. Harding,267 S.W. 976 (Tex. 1925)

In re Carrigan's Estate,517 S.W.2d 817 (Tex. App.--Tyler 1974, no writ)

Ingram v. Deere,288 S.W.3d 886 (Tex. 2009)

Thompson v. Thompson,500 S.W.2d 203 (Tex. Civ. App.--Dallas 1973, no writ)

Statutes

Tex. Bus. Orgs. Code § 152.051(b)

Tex. Gov't Code § 311.028

Tex. R. App. P. 11

Treatises

Restatement (Third) of Agency, § 1.02

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INTEREST OF AMICUS CURIAE

I write on my own behalf to emphasize several points regarding the de facto partnership doctrine, a common law doctrine used by state courts throughout the United States. I have attached my C.V. as Exhibit "A" to this letter; I am a professor at BYU's J. Reuben Clark Law School and the law of business associations is one of my main areas of academic focus. Last year, my colleague Gordon Smith and I published a new edition of the popular treatise "Bromberg & Ribstein on Partnership" with Wolters Kluwer. I am a licensed Texas attorney, practiced in Texas for several years, and graduated from the University of Texas School of Law.

My fees for preparing this brief were paid by Gary Farmer of Heritage Title Company of Austin, Inc. See Tex. R. App. P. 11. His company insures title and ownership in Texas partnerships, and he has an interest in entities abiding by the Texas partnership statute. It is important in his business that he know that people are in fact partners when they hold themselves out as partners.

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DISCUSSION

1. The de facto partnership doctrine is not disfavored in Texas law.

In enacting the Texas Revised Partnership Act, legislators specifically retained the concept of a "de facto partnership" in Sections 152.051-.052, which tracks Section 202 of the Revised Uniform Partnership Act (1997, amended 2013) and provides for the formation of a partnership without an express agreement. The Texas Supreme Court in Ingram v. Deere,288 S.W.3d 886, 896 (Tex. 2009), explained that the TRPA abrogated the earlier common law test requiring proof of all five factors to conclude the existence of a de facto partnership. Instead, the TRPA adopted a "totality of the circumstances" test, allowing for the finding of a de facto partnership upon the offering of proof that previously would not have sufficed.

Though appellants and their supporting amici cite Ingram v. Deere for the proposition that "Texas does not favor 'surprise or accidental partnerships,'" the actual paragraph in which those four words appear makes clear that the legislature intended only that de facto partnerships would not be created without the existence of particular circumstances. See id. at 898. If Texas did not favor de facto

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partnerships, then the TRPA would reflect a stricter evidentiary rule, not a "totality of the circumstances" rule. This approach is consistent with the approach taken by the 40 U.S. states and territories that have adopted RUPA, and should guide this court in its interpretation of the TRPA. See In re Carrigan's Estate,517 S.W.2d 817, 818-19 (Tex. App.--Tyler 1974, no writ) ("The fundamental rule which controls construction of a statute is to ascertain the intent of the legislature. In determining this intent, a court may consider the construction that has been placed on similar laws."); see also Tex. Gov't Code § 311.028 ("A uniform act included in a code shall be construed to effect its general purpose to make uniform the law of those states that enact it.")

2. The de facto partnership doctrine arises from agency law and is not dependent on the parties' specific intentions or explicit agreement.

The TRPA does not require that the parties intended to form a partnership. Tex. Bus. Orgs. Code § 152.051(b). Instead, expressions of intent are one of five factors to be considered. Ingram v. Deere, 288 S.W.3d at 899. Furthermore...