### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-41006

PLAYBOY ENTERPRISES, INCORPORATED, Plaintiff–Appellee,

v. JAVIER SANCHEZ-CAMPUZANO, Individually and as agent of Grupo Siete S.A., Incorporated; SPORTS TIME, INCORPORATED; GROUP SEVEN COMMUNICATIONS, Defendants–Appellants.

A ppeal from the United States District Court for the Southern District of Texas USDC No. 7:01-CV-226

Before REAVLEY, PRADO, and OWEN, Circuit Judges. PER CURIAM: * This appeal involves t he declaration of rights and enforcement of a guaranty agreement. Appellee, Playboy Enterprises Inc. (PEI), brought suit in district court t o e n f

orce a g uaranty agreement against Appellants, Javier Sanchez-Campuzano (Sanchez), Spor t s Time, Inc., and Group Seven U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 5, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-41006 Document: 00512164497 Page: 1 Date Filed: 03/05/2013No. 11-41006

Communications. The district c ourt g ranted summary judgment, holding that the agreement is enforceable and Sanchez is personally liable. We affirm.

I PEI sought a d eclaration in the district court t hat Sanchez, Grup o S i e t e S.A., G rupo Siete S.A. de C.V., Grupo Siete Comunicaciones, S.A. de C.V., Paul Siegel, Sports Time, Inc, and Group Seven Communications we r e required to guaranty the p erformance o f oblig a t i o ns under a License Agreement between PEI an d E d i torial Caballero, S.A. d e C.V. (EC). The district court dismissed Grupo Si e te S.A., Grupo Siete S.A. d e C.V., Grupo Siete Comunicaciones, S.A. de C.V., and Paul Siegel. No one has appealed these d i smiss a l s . T h e only remaining Appellants are S anchez, S p o rts Time, Inc., a nd Group Seven Communications. PEI entered into a License Agreement with E C a n d G rupo Siete International, Inc. ( G S I ) t o publish a Spanish language v ersion of Playboy magazine in Mexico and to distribut e it in Mexico a nd the U nited States. Sanchez is the owner and president of E C. Before ente r i n g i n t o the License Agreement, PEI required a Guaranty Agreement fro m E C ’s parent company, Grupo Siete S .A., and GSI’s parent company, Sports Time, Inc. Bot h p arties obliged. The Guaranty Agreement is in letter form, addressed to P EI, and states: In order t o induce you to enter i nto a License Agreement (a copy of which is annexed he r e t o ) b etween yourselves as licensor and Editorial Caballero, S .A. (“Caballero”) as licensee, for a Mexican language editi o n o f P L A Y B O Y M a g a z i n e ( t h e “Foreign Edition”), t h e undersigneds hereby guarantee, without any limitation of any kind, the performance of C aballero of all o f the term s a n d conditions of said License Agreement and, therefore, undertake to be responsible to you, j o i n t ly and severally w ith C aballero for all liabilities of Caballero arising out of its obligations u nder or in connection with said License Agreement or by reason of any breach thereof; and

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This guarantee and a greement s h all remain in full force and may be c a l l e d upon b y you without your being required to commence any proceedings of any nature against Caballero.
The letter was d ated September 1 0, 1996 a nd w a s signed on N ovember 7, 1996 by S anchez as president of “Grupo Siete S .A., Inc.” and b y Siegel as chairman of “Sports Time, Inc.” In 2001, PEI sued Appellant s to enforce the Guaranty Agreement and moved for partial summary judgment and declaratory r elief. The d istrict court abated the action pending resolution of an appeal in Texas s t a t e c ourt concerning the rights and obligations of PEI, EC, and GSI under the License Agreement. After two trials, the state court action resulted in a final judgment in which th e j u r y returned a verdict relieving PEI o f liability and f inding that EC had breached the L icense Agreement and h ad committed fraud against PEI. After final judgment was entered i n state court, the district court granted PEI’s motion for p artial s ummary j udgment and declaratory relief, holding that the G uaranty Agreement is an absolute g uaranty u nder which Sanchez, Sports Time, Inc., and/or G r oup Seven Communications are required to perform or
ensure performance o f EC and to j o intly and severally i ndemnify PEI for all liabilities in connection with EC’s breach of the L icense Agreement. Appellants appeal the district court’s judgment on multiple grounds. II The district court c onstru e d t h e Guaranty Agreement as a n a bsolute guaranty a nd held that Appellants were r esponsible for EC’s liabilities to PEI

a r ising under or in connection with EC’s breach of the License Agreement

. Appellants claim that s ummary j udgment w as improper because both the Guaranty Agreement and License Agreement are ambiguous in multiple ways. Appellants also rely on several c o n t r act defenses to claim that the underlying

3 Case: 11-41006 Document: 00512164497 Page: 3 Date Filed: 03/05/2013No. 11-41006

License Agreement i s unenforceable, thus rendering the Guaranty Agreement a nullity. A The Guaranty Agreement r eferences a l icense agreement a nd states that

a copy of that agreement is attached t o t h e Guaranty Agreement. H owever,

n o t h i n g is attached to the original or t o any authentic copy of the Gu a r a n t y Agreement. Appellants claim that t his, along with conflicting dates within the Guaranty Agreement and the License A greement relied upon by PEI, creates an ambiguity as to w h a t d ocument or iteration of the License Agreement was actually guaranteed. Although the type-written d a t es are different o n t he agreements—the Guaranty Agreement is dated September 10, 1996, a nd the License Agreement is dated November 1 , 1 996—as noted by the district court, t h e u ncontroverted evidence reveals that Sanc h ez signed the License Agreement on November 7, 1996 a nd that S a nchez a nd Siegel signed the G uaranty Agreement in one another’s presence on the same date. “The essential terms of a guaranty agreement are (1) the parties involved, (2) a manifestation of intent to guaranty the obligation, and (3) a description of the obligation b eing guaranteed. ” 1 T h e d escription of the obligation does not have to include a ll o f t he terms o f the u n d e r l ying a greement; as long as the underlying agreement is ident i fiable, the g uaranty is enforceable. 2 Here, the Guaranty Agreement identifies the licenso r a n d licensee to the underlying agreement, identifies the p a r t i es acting as guarantors, manifests a n i ntent to

1 M a teri a l P’shi

p s, Inc. v. V

entura , 102 S. W. 3d 252, 261 ( Tex. Ap p. —H ous ton [ 14th D is t. ] 2003, p et. d enied )

.

2 See i d. ( hold ing that a guaranty agreem ent d es cribing the obligation a s “ all outs tand ings and liabilities of [ d ebtor] w ith [ cred itor] as w ell as future s hip m ents ” id entif ied the es s ential term s of the und erlying agreem ent)

. 4 Case: 11-41006 Document: 00512164497 Page: 4 Date Filed: 03/05/2013No. 11-41006

guaranty the License Agreement, and d escribes the subject of the License Agreement. Additionally, throughout t he litigation, t he parties relied on the

same License Agreement a n d o f f e red no facts to suggest t hat there could be a different agree m e n t fitting the same d escription. Thus, notwithstanding di f f e r i n g dates and the f

ailure to attach the L icense Agreement, no ambiguity exists as to what agreement was being guaranteed. B A p p e l l a n t s a l s o argue that the Guaranty Agreement is ambiguous because the Lice n se Agreement includes GSI, but t he Guaranty Agreement only seeks to enforce the License Agreement against EC, l eaving EC susceptible to liability for G SI’s actions. Similarly, Appellants cl a i m t h a t because PEI argued in the state court trial that GSI b reached the License Agreement, there is a fact issue as to whether the Guaranty Agreement has even been triggered by EC. The district court correctly rejected both of t hese arguments. At no time has PEI a ttempted t o enforce the Guaranty Agreement for anything other than EC’s o bligations and liabilities to PEI. Consequently, the district court’s order

was o nly directed at enforcement of the License Agreement against EC, and the district c ourt held it need not address any alleged a m b i g uity concerning GSI. PEI h as not mentioned the liabilities of G SI nor does the Guaranty Agreement require that GSI breach anything. We also agree with the district court that the argument that the Guaranty Agreement has not been triggered is w ithout m erit. The agreement guarantees “the performance o f C a b a l l e r o [EC] of all o f the terms and c onditions of said License Agreement.” Appellants admitted before the district cou r t that EC breached the L icense Agreement. Thus, by Appellants’ own admission, there is no question that the Guaranty Agreement has been triggered. C

5 Case: 11-41006 Document: 00512164497 Page: 5 Date Filed: 03/05/2013No. 11-41006

The Guaranty Agreement states it is “without limitation of any kind” and “may be called upon b y [PEI] without

. . . being required to c o mmence any proceedings of any nature against [ EC].” The district court held t h a t t h e language of the G u a r a n t y A greement “unambiguously created a n absolute or unconditional guaranty u nder Texas l aw . . . contingent upon EC’s d e fault under the License Agreement and not upon any other condition.” We agree. When a guaranty is unqualified and expresses no conditions to trigger the payment o r p erformance, it is an “absolute guaranty.” 3 The Guaranty Agree m e n t fits this d escription—it negates a ny l imitations and specifically states t hat it may be called upon w ithout having to take any actions against EC. As c orrectly stated by the district c o urt, the general rule is that an a bsolute guaranty imposes liability on the guarantor eve n i f the underlying o bligation cannot be e nforced against the principal. 4 Indeed, “in [the] case of an absolute guaranty, no d emand upon the principal debtor is necessary . . . and the Breach of the principal’s contract t o p ay the sum promised ipso facto imposes upon the guarantor a complete liability.” 5 This interpretation is significant f or several reasons. First, as discussed above, Appellants claim that PEI’s attempt t o enforce the License Agreement against GSI in the state court trial bars P EI’s enforcement of th e G u a ranty Agreement against Appella n t s . Appellants have cited n o support for such a p r oposition, a nd the Guaranty A greement states that PEI may enfor c e t h e performance of EC against Appellants without commencing any actions against

3 U ni v ersa l Meta ls & M

a ch. , Inc. v. Boha rt , 539 S. W. 2d 874, 877 (Tex. 1976)

.
4 See i d. ( abs olute guarantors of p rom is sory note w ere liable to hold er even though the
s ignature of the p urp orted m ak er w as f orged ) ; H

ouston S ash & D oor Co. , Inc. v . H ea ner , 577 S. W. 2d 217, 222 ( Tex. 1979) ( guarantor could not interp os e us ury d ef ens e of p rincip al d ebtor) ; see a l so U

. S. v . Li ttl e Joe Tra wl ers, Inc. , 776 F. 2d 1249, 1252 ( 5th Cir. 1985)

.
5 U ni v ersa l M

eta l s & M

a ch. , Inc. , 539 S. W. 2d at 878 ( quoting El P aso Ba nk & Trust Co. v . F i rst S ta te Ba nk , 202 S. W. 522, 524 ( T ex. Civ. Ap p . — El P as o 1918, no w rit) )

. 6 Case: 11-41006 Document: 00512164497 Page: 6 Date Filed: 03/05/2013No. 11-41006

EC. S econd, A ppellants rely on m ultiple contract d efenses to t he License Agreement t o argue that the Guaranty Agreement is unenforceable. H owever,
even if there are contract defenses that EC may assert, they a re not available to Appellants as absolute guarantors. 6 Appellants reject this interpretation, vaguely claiming that the language of the Guaranty Agreement is not clearly u n c o n d i t i o nal and is subject to multiple defenses. However, they fail to discuss a ny language to support this position, make no attempt to articulate t he i r o w n i n t e rpretation, and cite no contrary case law. The agreement created an absolute guaranty, rendering the underlying contract defenses that EC may assert unavailable to Appellants. D Appellants a lso claim that a s upposed “Rene g o t i a ted Payment Plan Agreement” changed the terms of the License Agreement by extending payment dates, thus discharging any guarantors from liability. In Texas, if the creditor and principal debtor vary the terms of their contract in any material degree, a
new contract has been formed upon which the g uar a n t o r i s not obligated or bound. 7 De f

e n s e s based on changes t o the underlying obligation a nd thus changes to the guaranty agreement are termed suretyship defenses. 8 “A suretyship defense is an affirmative defense, and t he burden of proving a change rests o n the guarantor.” 9 “The suretyship defenses a rise by operation of law, and absent an express waiver, e ven an absolute and unconditional guarantor m ay

6 I d. ; see a l so Fa rm ers & M erchs. Sta te Ba nk of Krum v . Reece Sup pl y Co. , 79 S. W. 3d 615, 619 ( Tex. Ap p . — E as tland 2002, p et. d enied ) ( hold ing abs olute guarantor could not as s ert d ef ens es of of

f set and f

ailure of cons id eration f or the und erlying contract)

.
7 M cKni g ht v . V

a . M i rror Co. , 463 S. W. 2d 428, 430 ( Tex. 1971)

.
8 U

. S

. v . V a hl co C orp . , 800 F. 2d 462, 466 ( 5th C ir. 1986)

.
9 Id. ( citing Cri m m i ns v . Low ry , 691 S. W. 2d 582, 585 ( Tex. 1985) )

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assert t hem.” 1 0 W h e t h er a guaranty is unconditional “has nothing to do with

w h e t h e r the guarantor waives asserting the suretyship defenses; the two a re simply not related.” 1 1 On appeal, Appellants merely st a te that “ [i]nasmuch as . . . PEI renegotiated the terms and conditions of the License Agreement when it entered into the Renegotiated P ayment Plan A greement, this material change in the terms of the so-called guarantee was s u f ficient to release and discharge any g uarantors from a ny liability or other responsibility as a matter of la w . ” Appellants fail to a rticulate w hy the parties agreeing to p ay a mounts that were already d ue under the contract is a material change. As the district court stated, “broad and conclusory allegations that PEI materially changed the terms of the License Agreement by e ntering into the Renegotiated Payment Plan Agreement do not defeat summary judgment.” III Sanchez claims that the district court should have dismissed PEI’s claims against him because he was never personally served. S anchez admits that he received servi c e , b ut claims that such service v iolated R ule 4 o f the Federal Rules of Civil Procedure, the Inter-American C onvention on the Service of Documents, the Hague Convention, the Foreign Sovereign Immunities Act, and Mexican law and sovereignty. Rather than address t he s ubstance o f his service argument, Sanchez merely states, “[t]his i ssue [has] been extensively briefed before the Trial Court

. . . . Such prior briefing is i n corporated herein by reference.” “A litigant’s failure t o provide legal or f actual a nalysi s r e sults in

1 0 Id. (citing Shep herd v . Eri c Schuster Corp

. , 424 S. W. 2d 6 9 3 , 6 96- 97 ( Tex. Ap p . — H ous ton [14th D is t. ] 1968, w rit ref ’d n. r. e. ) )

.
1 1 I d. 8 Case: 11-41006 Document: 00512164497 Page: 8 Date Filed: 03/05/2013No. 11-41006

waiver.” 1 2 By failing to address his arguments in t he body o f his brief, Sanchez has waived his claim of insufficient service. IV Sanchez signed the G uaranty Agreement as, “ Javier Sanchez, President,”

an d t h e w o r ds “Grupo Siete S.A., Inc.” are printed above his signature. When PEI filed suit i n f

e deral court to enforce the Guaranty Agreement against Grupo Siete S.A., Inc., Sanchez responded t h a t r a t h er than being an actual entity, Grupo S i ete S.A., I nc. m erely “refer[red] to a trademark, image, b rand, or trade

name o f the Sanchez family.” Sanchez then argued that he signed the Guaranty Agreement in his capacity as President of EC, the company that had e ntered into the License Agreement with PEI. The district court found no genuine i ssue of m ateri a l f act as to whether Sanchez signed in h is individual capacity because Sanchez admitted that Grupo Siete S.A., Inc. does not exist, and, under Texas law, “an agent who executes a contract on behalf of a f ictitious principal is [] personally liable on the contract for failure to accurately disclose his principal.” 1 3 The district c ourt also rejected Sanchez’s argument that he s igned on behalf of EC because such a construction would render the Guaranty Agreement a n u l l i t y

— t r e a t i n g t h e g u a r a n t o r and the borrower as the same entity would negate the purpose of a guaranty. On a pp e a l , Sanchez a rgues that the Guaranty Agreement cannot be

en f o r ced against him individually because (1) I llinois law s hould have been applied, and (2) there is a fact issue as to whether PEI knew that S anchez signed on behalf of EC.

1 2 N

. W. E nters. Inc. v . Ci ty of H ouston , 352 F. 3d 162, 183 n. 24 ( 5th Cir. 2003) ; see a l so S E C v . Ba nner F

und Int’l , 211 F .3d 602, 613 ( D

. C

. Cir. 2000) ( hold ing that the d ef end a n t w aived an argum ent f

or im p rop er s ervice und er the H ague Convention f or inad equate brief

ing on ap p eal)

.

1 3 Sta cy v . Energy Mgm t

. G rp . Ltd. , Inc. , 734 S. W. 2d 149, 150 ( Tex. Ap p . — H ous ton [ 1s t D is t. ] 1987, no w rit)

. 9 Case: 11-41006 Document: 00512164497 Page: 9 Date Filed: 03/05/2013No. 11-41006 A Before t h e d i s t r ict court, Sanchez briefed Texas law in his response to PEI’s motion f

or summary judgment. In a single footnote, Sanchez stated that “Inasmuch as t he Licensing Agreement specifies that Illinois la w a p p lies, it stands to reason that Illinois law also applies t o t he G u aranty A greement.” However, Sa n c h e z argued in the same footnote that “the common law of both Texas and Illinois follow the same general rules.” He then r eiterated that Texas and Illinois l aw are the same by citing a s ingle Illinois case at t he end of a string citation of Texas cases. N ow, on appeal, Sanchez argues that the d i strict court should have applied Illinois law to the Guaranty Agreement. Recognizing that its jurisdiction w a s based on diversity, the district court correctly held t hat it must apply the substantive law of the forum state in determining the rights and obligations of t h e p a rties to t he Guaranty Agreement. 1 4 Thus, Texas choice-of-law r ules a pp l y in this case. 1 5 H owever, before the court undergoes a choice-of-law analysis, it should first determine if t h e l a w s are i n conflict. 1 6 If the r esult would be t he s ame under t h e laws o f either jurisdiction, there is no need to resolve the choice-of-law question. 1 7 This is b ecause Texas courts presume that o ther s tates’ l aws are the same as its own; thus, the party advocating the use of a different state’s laws bears the burden of rebutting that presumption. 1 8 Although federal courts m ust t ake judicial notice of the laws of every state, Texas choice-of-law r ules place the burden on Sanchez

1 4 L ockw ood Corp

. v . Bl a ck , 669 F. 2d 324, 327 ( 5th C ir. 1982)

.
1 5 See i d.

1 6 SA V A gum arska i n kem i

jska i ndustri a d. d. v. A dv a nc e d P o l y m e r Sci s. , Inc. , 128 S. W. 3d 304, 314 ( Tex. Ap p . — D allas 2004, no pet. )

.

1 7 I d. (citing D unca n v . Cessna A i rcra f t Co. , 665 S. W. 2d 414, 419 ( Tex. 1984) )

.
1 8 See Excess Underw ri t ers a t Ll oyd’s, London v . Fra nk’s C a si ng C rew & Renta l Tool s, Inc. , 246 S. W. 3d 42, 53 & n. 5 ( Tex. 2008)

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to show how the application of Illinois law compels a result d i fferent from what Texas law would yield. 1 9 With the exception of one f ootnote, Sanchez applied Texas l aw in his briefing before t he district court. More i mportantly, Sanchez agreed with PEI in the d istrict court that the applicable Illinois and Texas laws were the same. Now, for the first time on appeal, Sanchez argues that t he district court should have a pplied I llinois law but still fails t o b rief a choice-of-law analysis, d oes not discuss the differences between the two jurisdictions’ laws, and reiterates that his position is also meritorious under Texas law. Unlike Texas law, I l linois law w o uld n o t rule out the possibility that S a n c h e z signed the Guaranty Agreement on behalf of EC, t he same part y agai n s t w hom the License Agreement would b e enforced. 2 0 However, Sanchez

n e i ther cites this applicable Illinois law, n or does he e xplain the d iffer e n c e s between the jurisdictions’ laws. Conversely, he claimed below that the results would be the same under either jurisdiction’s laws. Absent so me “manifest injustice,” parties are g enerally bound by their theories of law argued in the district court. 2 1 “If ‘manifest injustice’ only meant that application of another jurisdiction’s law would yield a different result, then choice of law issues could always be raised first on appeal.” 2 2 Sanchez has not shown m anifest injustice. Because Sanchez r e p r e s e n t e d t o t h e district c ourt that th e applicable Texas and Illinois l aws a re the same, failed then and now to undergo a choice-of-law analysis, and makes n o effort to articulate t he difference

1 9 I d. ; see al so Kucel v. Wa l ter E. H el l er , 813 F

. 2d 67, 74 ( 5th C ir. 1987)

.
2 0 See A ddi son Sta te Ba nk v . N a t’l M a int. M gm t. , Inc. , 529 N

. E. 2d 30, 32- 33 ( Ill. Ap p . Ct. 1988)

.

2 1 Am

. Int’l Tra di ng C orp . v . Petrol eos M

exi ca nos , 835 F. 2d 536, 540 (5th Cir. 1987)

.
2 2 I d. 11 Case: 11-41006 Document: 00512164497 Page: 11 Date Filed: 03/05/2013No. 11-41006

between the laws on appeal, Sanchez has w aived his c hoice-of-law argument and is bound by his position below. 2 3 B All parties agree that “Grupo Siete S.A., Inc.” i s not an actual entity. PEI

as s e r t s t h a t this fact only strengthens its claim that Sanchez should be held individually liable because, under Texas law, an agent that e xecutes a contract

on behalf of a fictitious principal is personally liable on the contract. C onversely, Sanchez argues that evidence was p r e s e n t e d t o the trial court that P EI knew that Sanchez intended to sign the Guaranty Agreement on behalf of EC, not Grupo Siete S.A., Inc. Sanchez points to the affidavit of his son, Marco S anchez, stating t hat “my d ad

. . . in my presence, told R o bert O’Donnell, who, at the time,

was the Senior V i c e - P resident of International Publishing for PEI, that they

were only agreeing to sign the Guaranty Agreement in t h e i r representative capacities for EC and Sports Time, Inc.” The district court held that t h ere was
no genuine issue of material fact regarding whether Sanchez i dentified the true principal for whom he was acting when he signed the Guaranty Agreement. 1 Sanchez points to affidavits claiming that the parties knew he i n tended to sign the agreement on b ehalf of EC, not in his individual capacity nor on behalf of Grupo Siete S.A., I nc., and relies on a Texas Uniform C ommercial Code (UCC) provision that s tates “[w]ith respect to any other person, the represent a tive is liable on the instrument unless the representative prove s t hat t he original parties did not intend the r e presentative to be liable on the instrument.” 2 4 D e s pite r elying on this UCC provision, Sanchez concedes i n his brief that “th e

2 3 Fruge v . A meri sure M ut. Ins. Co. , 663 F. 3d 743, 747 ( 5th C i r . 2 0 1 1) ( p er curiam ) ( “Failure to r a i s e a n argum ent bef ore the dis trict court w aives that argum ent, includ ing an argum ent f

or choice- of

- law analys is

. ”)

.
2 4 Tex. Bus

. & Com

. Cod e Ann. § 3. 402( b) ( 2) (Wes t 2012)

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Guarantee Agreement is arguably not a negotiable instrument such t h a t the

a bove-quoted UCC provision does not directly apply.” Indeed, “[a] guaranty agreement is not a negotiable instrument, and is n ot governed by the provisions of the Texas UCC.” 2 5 Regardless, i n Eubank v. First National Bank of Bellville , 2 6 a Texas Court of Appeals addressed the same argument Sanchez m akes and squarely rejected it. In Eubank , a bank brought suit against guaranto r s o f a corporation’s note and w as granted summary judgment against the guarantors. 2 7 On appeal, the guarantor s a r g u e d t hat they were not individually l iable for the note because they signed in their capacity as officers of the s ame corporation that secured the note. 2 8 T he court rejected this as contrary to t he d efinition of a g uaranty agreement, which is “an undertaking by a third person to another t o answer for the payment of a debt, i ncurred by a named person, in the event t hat the named
person fails to pay.” 2 9 Further, it held that “a w ritten collateral undertaking given to secure a corporate debt will be rendered meaningless if t h e primary debtor is found to be the only party liable under it.” 3 0 The court also rejected the guarantor’s evidence that t he parties understood he w as s igning on behalf of the corporation s ecuring the note because one’s “subjective b elief of the purpose of the g u a r a n t y agreement cannot contradict the intent of t he parties expressed

2 5 M a teri a l P’shi

p s, Inc. v. V

entura , 102 S. W. 3d 252, 260 ( Tex. Ap p. —H ous ton [ 14th D is t. ] 2003, p et. d enied )

.

2 6 814 S. W. 2d 130 (Tex. Ap p . — Corp us Chris ti 1991, no p et. )

.
2 7 E uba nk , 814 S. W. 2d at 131.

2 8 I d. at 133.

2 9 I d. ( citing D ann v . Tea m Ba nk , 788 S. W. 2d 182, 183 ( T e x . A p p . — D allas 1990, no w rit) )

.
3 0 I

d. 13 Case: 11-41006 Document: 00512164497 Page: 13 Date Filed: 03/05/2013No. 11-41006

within t he four corners of the d ocument.” 3 1 Several other Texas courts of appeals have come to the same conclusion. 3 2 2 Finally, Sanchez claims that because th e p arties understood he was
s i g n i n g on behalf of a non-existent entity, he is not personally l i able. As the district court a rticulated, Texas law clearly r e jects this argument. “[A]n agent does not escape liability by purporting to act for a nonexistent principal.” 3 3 Instead, “one w ho contracts as an agent i n the name of a n onexistent or fictitious principal, or a principal without legal status or e xistence, renders himself personally liable on t he contracts so made.” 34 “ T h is is true even though the agent has disclosed a principal but has failed to disclose the true principal.” 3 5 Texas law rejects Sanchez’s signing t he Guaranty Agreement on behalf of the same entity signing the Licensing Agreement and provides no protection for signing on behalf of a fictitious principal. Thus, the district court was correct to hold Sanchez personally liable. * * * For the foregoing reasons, we AFFIRM the district court’s judgment.

3 1 I d. at 134.

3 2 See, e. g. , M

a teri a l P ’shi

p s, Inc. v . V

entura , 1 0 2 S

. W

. 3 d 252, 263- 64 ( Tex. Ap p . — H ous ton [ 14th D is t. ] 2003, pet. d enied ) ( F ros t, J. , concurring) ; A m . Petrof i na Co. of Tex. v . Brya n , 519 S. W. 2d 484, 486- 87 (Tex. A p p . —El Pas o 1975, no w rit)

.

3 3 C a rter v . Wa lton , 469 S. W. 2d 462, 471 (Tex. A p p . — C orp us Chris ti 1971, w rit ref ’d n. r. e. )

.
3 4 I

d. ( i n ternal quotation m ark s om itted ) ; see al so S ta cy v . Energy M gm t

. G rp . Ltd. , I n c . , 7 3 4 S. W. 2d 149, 150 ( Tex. Ap p . — Hous ton [ 1s t D is t. ] 1987, no w rit) ( “[ A ] n agent w h o executes a contract on behalf of a f ictitious p rincip al is als o p ers onally liable on the contract f or f ailure to accurately d is clos e his p rincip al. ”)

.
3 5 Sw

. Bel l M

edi a, Inc. v . Trep

p er , 784 S. W. 2d 68, 71 ( T ex. Ap p . — D allas 1989, no w rit)

.
14 Case: 11-41006 Document: 00512164497 Page: 14 Date Filed: 03/05/2013