IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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.

Appeal 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 the declaration of rights and enforcement of a

guaranty agreement. Appellee, Playboy Enterprises Inc. (PEI), brought suit in

district court to enforce a guaranty agreement against Appellants, Javier

Sanchez-Campuzano (Sanchez), Sports Time, Inc., and Group Seven

United States Court of Appeals

Fifth Circuit

F I L E D

March 5, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Communications. The district court granted summary judgment, holding that

the agreement is enforceable and Sanchez is personally liable. We affirm.

 

I

PEI sought a declaration in the district court that Sanchez, Grupo Siete

S.A., Grupo Siete S.A. de C.V., Grupo Siete Comunicaciones, S.A. de C.V., Paul

Siegel, Sports Time, Inc, and Group Seven Communications were required to

guaranty the performance of obligations under a License Agreement between

PEI and Editorial Caballero, S.A. de C.V. (EC). The district court dismissed

Grupo Siete S.A., Grupo Siete S.A. de C.V., Grupo Siete Comunicaciones, S.A.

de C.V., and Paul Siegel. No one has appealed these dismissals. The only

remaining Appellants are Sanchez, Sports Time, Inc., and Group Seven

Communications. 

PEI entered into a License Agreement with EC and Grupo Siete

International, Inc. (GSI) to publish a Spanish language version of Playboy

magazine in Mexico and to distribute it in Mexico and the United States. 

Sanchez is the owner and president of EC. Before entering into the License

Agreement, PEI required a Guaranty Agreement from EC’s parent company,

Grupo Siete S.A., and GSI’s parent company, Sports Time, Inc. Both parties

obliged. 

The Guaranty Agreement is in letter form, addressed to PEI, and states:

In order to induce you to enter into a License Agreement (a copy of

which is annexed hereto) between yourselves as licensor and

Editorial Caballero, S.A. (“Caballero”) as licensee, for a Mexican

language edition ofPLAYBOYMagazine (the “Foreign Edition”), the

undersigneds hereby guarantee, without any limitation of any kind,

the performance of Caballero of all of the terms and conditions of

said License Agreement and, therefore, undertake to be responsible

to you, jointly and severally with Caballero for all liabilities of

Caballero arising out of its obligations under or in connection with

said License Agreement or by reason of any breach thereof; and

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This guarantee and agreement shall remain in full force and may be

called upon by you without your being required to commence any

proceedings of any nature against Caballero.

The letter was dated September 10, 1996 and was signed on November 7, 1996

by Sanchez as president of “Grupo Siete S.A., Inc.” and by Siegel as chairman of

“Sports Time, Inc.”

In 2001, PEI sued Appellants to enforce the Guaranty Agreement and

moved for partial summary judgment and declaratory relief. The district court

abated the action pending resolution of an appeal in Texas state court

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 the jury returned a verdict relieving PEI of liability and finding that

EC had breached the License Agreement and had committed fraud against PEI. 

After final judgment was entered in state court, the district court granted

PEI’s motion for partial summary judgment and declaratory relief, holding that

the Guaranty Agreement is an absolute guaranty under which Sanchez, Sports

Time, Inc., and/or Group Seven Communications are required to perform or

ensure performance of EC and to jointly and severally indemnify PEI for all

liabilities in connection with EC’s breach of the License Agreement. Appellants

appeal the district court’s judgment on multiple grounds. 

II

The district court construed the Guaranty Agreement as an absolute

guaranty and held that Appellants were responsible for EC’s liabilities to PEI

arising under or in connection with EC’s breach of the License Agreement. 

Appellants claim that summary judgment was improper because both the

Guaranty Agreement and License Agreement are ambiguous in multiple ways. 

Appellants also rely on several contract defenses to claim that the underlying

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License Agreement is unenforceable, thus rendering the Guaranty Agreement

a nullity. 

A

The Guaranty Agreement references a license agreement and states that

a copy of that agreement is attached to the Guaranty Agreement. However, 

nothing is attached to the original or to any authentic copy of the Guaranty

Agreement. Appellants claim that this, along with conflicting dates within the

Guaranty Agreement and the License Agreement relied upon by PEI, creates an

ambiguity as to what document or iteration of the License Agreement was

actually guaranteed. 

Although the type-written dates are different on the agreements—the

Guaranty Agreement is dated September 10, 1996, and the License Agreement

is dated November 1, 1996—as noted by the district court, the uncontroverted

evidence reveals that Sanchez signed the License Agreement on November 7,

1996 and that Sanchez and Siegel signed the Guaranty 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 being guaranteed.”

1 The description of the obligation does not

have to include all of the terms of the underlying agreement; as long as the

underlying agreement is identifiable, the guaranty is enforceable.2 Here, the

Guaranty Agreement identifies the licensor and licensee to the underlying

agreement, identifies the parties acting as guarantors, manifests an intent to

1 Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 261 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied).

2 See id. (holding that a guaranty agreement describing the obligation as “all

outstandings and liabilities of [debtor] with [creditor] as well as future shipments” identified

the essential terms of the underlying agreement).

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guaranty the License Agreement, and describes the subject of the License

Agreement. Additionally, throughout the litigation, the parties relied on the

same License Agreement and offered no facts to suggest that there could be a

different agreement fitting the same description. Thus, notwithstanding

differing dates and the failure to attach the License Agreement, no ambiguity

exists as to what agreement was being guaranteed. 

B

Appellants also argue that the Guaranty Agreement is ambiguous because

the License Agreement includes GSI, but the Guaranty Agreement only seeks

to enforce the License Agreement against EC, leaving EC susceptible to liability

for GSI’s actions. Similarly, Appellants claim that because PEI argued in the

state court trial that GSI breached 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 these arguments. At no time

has PEI attempted to enforce the Guaranty Agreement for anything other than

EC’s obligations and liabilities to PEI. Consequently, the district court’s order

was only directed at enforcement of the License Agreement against EC, and the

district court held it need not address any alleged ambiguity concerning GSI.

PEI has not mentioned the liabilities of GSI 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 without merit. The agreement guarantees

“the performance of Caballero [EC] of all of the terms and conditions of said

License Agreement.” Appellants admitted before the district court that EC

breached the License Agreement. Thus, by Appellants’ own admission, there is

no question that the Guaranty Agreement has been triggered. 

C

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The Guaranty Agreement states it is “without limitation of any kind” and

“may be called upon by [PEI] without . . . being required to commence any

proceedings of any nature against [EC].” The district court held that the

language of the Guaranty Agreement “unambiguously created an absolute or

unconditional guaranty under Texas law . . . contingent upon EC’s default 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 or performance, it is an “absolute guaranty.”3 The Guaranty

Agreement fits this description—it negates any limitations and specifically

states that it may be called upon without having to take any actions against EC. 

As correctly stated by the district court, the general rule is that an absolute

guaranty imposes liability on the guarantor even if the underlying obligation

cannot be enforced against the principal.4 Indeed, “in [the] case of an absolute

guaranty, no demand upon the principal debtor is necessary . . . and the Breach

of the principal’s contract to pay the sum promised ipso facto imposes upon the

guarantor a complete liability.”5

 

This interpretation is significant for several reasons. First, as discussed

above, Appellants claim that PEI’s attempt to enforce the License Agreement

against GSI in the state court trial bars PEI’s enforcement of the Guaranty

Agreement against Appellants. Appellants have cited no support for such a

proposition, and the Guaranty Agreement states that PEI may enforce the

performance of EC against Appellants without commencing any actions against

3 Universal Metals & Mach., Inc. v. Bohart, 539 S.W.2d 874, 877 (Tex. 1976).

4 See id. (absolute guarantors of promissory note were liable to holder even though the

signature of the purported maker was forged); Houston Sash & Door Co., Inc. v. Heaner, 577

S.W.2d 217, 222 (Tex. 1979) (guarantor could not interpose usury defense of principal debtor);

see also U.S. v. Little Joe Trawlers, Inc., 776 F.2d 1249, 1252 (5th Cir. 1985).

5 Universal Metals & Mach., Inc., 539 S.W.2d at 878 (quoting El Paso Bank & Trust

Co. v. First State Bank, 202 S.W. 522, 524 (Tex. Civ. App.—El Paso 1918, no writ)).

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EC. Second, Appellants rely on multiple contract defenses to the License

Agreement to argue that the Guaranty Agreement is unenforceable. However,

even if there are contract defenses that EC may assert, they are not available to

Appellants as absolute guarantors.6

Appellants reject this interpretation, vaguely claiming that the language

of the Guaranty Agreement is not clearly unconditional and is subject to

multiple defenses. However, they fail to discuss any language to support this

position, make no attempt to articulate their own interpretation, 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 also claim that a supposed “Renegotiated 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 guarantor is not obligated or

bound.7 Defenses based on changes to the underlying obligation and thus

changes to the guaranty agreement are termed suretyship defenses.8“A

suretyship defense is an affirmative defense, and the burden of proving a change

rests on the guarantor.”9

“The suretyship defenses arise by operation of law, and

absent an express waiver, even an absolute and unconditional guarantor may

6

Id.; see also Farmers & Merchs. State Bank of Krum v. Reece Supply Co., 79 S.W.3d

615, 619 (Tex. App.—Eastland 2002, pet. denied) (holding absolute guarantor could not assert

defenses of offset and failure of consideration for the underlying contract).

7 McKnight v. Va. Mirror Co., 463 S.W.2d 428, 430 (Tex. 1971).

8 U.S. v. Vahlco Corp., 800 F.2d 462, 466 (5th Cir. 1986).

9

Id. (citing Crimmins v. Lowry, 691 S.W.2d 582, 585 (Tex. 1985)).

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assert them.”10 Whether a guaranty is unconditional “has nothing to do with

whether the guarantor waives asserting the suretyship defenses; the two are

simply not related.”11

On appeal, Appellants merely state that “[i]nasmuch as . . . PEI

renegotiated the terms and conditions of the License Agreement when it entered

into the Renegotiated Payment Plan Agreement, this material change in the

terms of the so-called guarantee was sufficient to release and discharge any

guarantors from any liability or other responsibility as a matter of law.” 

Appellants fail to articulate why the parties agreeing to pay amounts that were

already due 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 entering 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. Sanchez admits that he

received service, but claims that such service violated Rule 4 of the Federal

Rules of Civil Procedure, the Inter-American Convention on the Service of

Documents, the Hague Convention, the Foreign Sovereign Immunities Act, and

Mexican law and sovereignty. Rather than address the substance of his service

argument, Sanchez merely states, “[t]his issue [has] been extensively briefed

before the Trial Court . . . . Such prior briefing is incorporated herein by

reference.” “A litigant’s failure to provide legal or factual analysis results in

10

Id. (citing Shepherd v. Eric Schuster Corp., 424 S.W.2d 693, 696-97 (Tex.

App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.)).

11

Id.

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waiver.”12 By failing to address his arguments in the body of his brief, Sanchez

has waived his claim of insufficient service.

IV

Sanchez signed the Guaranty Agreement as, “Javier Sanchez, President,”

and the words “Grupo Siete S.A., Inc.” are printed above his signature. When

PEI filed suit in federal court to enforce the Guaranty Agreement against Grupo

Siete S.A., Inc., Sanchez responded that rather than being an actual entity,

Grupo Siete S.A., Inc. merely “refer[red] to a trademark, image, brand, or trade

name of the Sanchez family.” Sanchez then argued that he signed the Guaranty

Agreement in his capacity as President of EC, the company that had entered into

the License Agreement with PEI.

The district court found no genuine issue of material fact as to whether

Sanchez signed in his 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 fictitious principal is [] personally liable on the contract

for failure to accurately disclose his principal.”13 The district court also rejected

Sanchez’s argument that he signed on behalf of EC because such a construction

would render the Guaranty Agreement anullity—treating the guarantor and the

borrower as the same entity would negate the purpose of a guaranty. 

On appeal, Sanchez argues that the Guaranty Agreement cannot be

enforced against him individually because (1) Illinois law should have been

applied, and (2) there is a fact issue as to whether PEI knew that Sanchez signed

on behalf of EC. 

12 N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 183 n.24 (5th Cir. 2003); see also

SEC v. Banner Fund Int’l, 211 F.3d 602, 613 (D.C. Cir. 2000) (holding that the defendant

waived an argument for improper service under the Hague Convention for inadequate briefing

on appeal).

13 Stacy v. Energy Mgmt. Grp. Ltd., Inc., 734 S.W.2d 149, 150 (Tex. App.—Houston [1st

Dist.] 1987, no writ).

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A

Before the district court, Sanchez briefed Texas law in his response to

PEI’s motion for summary judgment. In a single footnote, Sanchez stated that

“Inasmuch as the Licensing Agreement specifies that Illinois law applies, it

stands to reason that Illinois law also applies to the Guaranty Agreement.” 

However, Sanchez argued in the same footnote that “the common law of both

Texas and Illinois follow the same general rules.” He then reiterated that Texas

and Illinois law are the same by citing a single Illinois case at the end of a string

citation of Texas cases. Now, on appeal, Sanchez argues that the district court

should have applied Illinois law to the Guaranty Agreement.

Recognizing that its jurisdiction was based on diversity, the district court

correctly held that it must apply the substantive law of the forum state in

determining the rights and obligations of the parties to the Guaranty

Agreement.14 Thus, Texas choice-of-law rules apply in this case.15 However,

before the court undergoes a choice-of-law analysis, it should first determine if

the laws are in conflict.16

If the result would be the same under the laws of

either jurisdiction, there is no need to resolve the choice-of-law question.17 This

is because Texas courts presume that other states’ laws 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.18 Although federal courts must take judicial notice

of the laws of every state, Texas choice-of-law rules place the burden on Sanchez

14 Lockwood Corp. v. Black, 669 F.2d 324, 327 (5th Cir. 1982).

15 See id.

16 SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Scis., Inc., 128

S.W.3d 304, 314 (Tex. App.—Dallas 2004, no pet.).

17

Id. (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984)).

18 See Excess Underwriters at Lloyd’s, London v. Frank’s Casing Crew & Rental Tools,

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 different from what

Texas law would yield.19

With the exception of one footnote, Sanchez applied Texas law in his

briefing before the district court. More importantly, Sanchez agreed with PEI

in the district court that the applicable Illinois and Texas laws were the same. 

Now, for the first time on appeal, Sanchez argues that the district court should

have applied Illinois law but still fails to brief a choice-of-law analysis, does not

discuss the differences between the two jurisdictions’ laws, and reiterates that

his position is also meritorious under Texas law. 

Unlike Texas law, Illinois law would not rule out the possibility that

Sanchez signed the Guaranty Agreement on behalf of EC, the same party

against whom the License Agreement would be enforced.20 However, Sanchez

neither cites this applicable Illinois law, nor does he explain the differences

between the jurisdictions’ laws. Conversely, he claimed below that the results

would be the same under either jurisdiction’s laws. 

Absent some “manifest injustice,” parties are generally bound by their

theories of law argued in the district court.21

“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.”22 Sanchez has not

shown manifest injustice. Because Sanchez represented to the district court that

the applicable Texas and Illinois laws are the same, failed then and now to

undergo a choice-of-law analysis, and makes no effort to articulate the difference

19

Id.; see also Kucel v. Walter E. Heller, 813 F.2d 67, 74 (5th Cir. 1987).

20 See Addison State Bank v. Nat’l Maint. Mgmt., Inc., 529 N.E.2d 30, 32-33 (Ill. App.

Ct. 1988).

21 Am. Int’l Trading Corp. v. Petroleos Mexicanos, 835 F.2d 536, 540 (5th Cir. 1987).

22

Id.

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between the laws on appeal, Sanchez has waived his choice-of-law argument and

is bound by his position below.23

 B

All parties agree that “Grupo Siete S.A., Inc.” is not an actual entity. PEI

asserts that this fact only strengthens its claim that Sanchez should be held

individually liable because, under Texas law, an agent that executes a contract

on behalf of a fictitious principal is personally liable on the contract. Conversely,

Sanchez argues that evidence was presented to the trial court that PEI 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 Sanchez,

stating that “my dad . . . in my presence, told Robert O’Donnell, who, at the time,

was the Senior Vice-President of International Publishing for PEI, that they

were only agreeing to sign the Guaranty Agreement in their representative

capacities for EC and Sports Time, Inc.” The district court held that there was

no genuine issue of material fact regarding whether Sanchez identified 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 intended to

sign the agreement on behalf of EC, not in his individual capacity nor on behalf

of Grupo Siete S.A., Inc., and relies on a Texas Uniform Commercial Code (UCC)

provision that states “[w]ith respect to any other person, the representative is

liable on the instrument unless the representative proves that the original

parties did not intend the representative to be liable on the instrument.”24

Despite relying on this UCC provision, Sanchez concedes in his brief that “the

23 Fruge v. Amerisure Mut. Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011) (per curiam)

(“Failure to raise an argument before the district court waives that argument, including an

argument for choice-of-law analysis.”).

24 Tex. Bus. & Com. Code Ann. § 3.402(b)(2) (West 2012).

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Guarantee Agreement is arguably not a negotiable instrument such that the

above-quoted UCC provision does not directly apply.” Indeed, “[a] guaranty

agreement is not a negotiable instrument, and is not governed by the provisions

of the Texas UCC.”25 

Regardless, in Eubank v. First National Bank of Bellville,

26

a Texas Court

of Appeals addressed the same argument Sanchez makes and squarely rejected

it. In Eubank, a bank brought suit against guarantors of a corporation’s note

and was granted summary judgment against the guarantors.27 On appeal, the

guarantors argued that they were not individually liable for the note because

they signed in their capacity as officers of the same corporation that secured the

note.28 The court rejected this as contrary to the definition of a guaranty

agreement, which is “an undertaking by a third person to another to answer for

the payment of a debt, incurred by a named person, in the event that the named

person fails to pay.”29 Further, it held that “a written collateral undertaking

given to secure a corporate debt will be rendered meaningless if the primary

debtor is found to be the only party liable under it.”30 The court also rejected the

guarantor’s evidence that the parties understood he was signing on behalf of the

corporation securing the note because one’s “subjective belief of the purpose of

the guaranty agreement cannot contradict the intent of the parties expressed

25 Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 260 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied).

26

814 S.W.2d 130 (Tex. App.—Corpus Christi 1991, no pet.).

27 Eubank, 814 S.W.2d at 131.

28

Id. at 133.

29

Id. (citing Dann v. Team Bank, 788 S.W.2d 182, 183 (Tex. App.—Dallas 1990, no

writ)).

30

Id.

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within the four corners of the document.”31 Several other Texas courts of appeals

have come to the same conclusion.32 

2

Finally, Sanchez claims that because the parties understood he was

signing on behalf of a non-existent entity, he is not personally liable. As the

district court articulated, Texas law clearly rejects this argument. “[A]n agent

does not escape liability by purporting to act for a nonexistent principal.”33

Instead, “one who contracts as an agent in the name of a nonexistent or fictitious

principal, or a principal without legal status or existence, renders himself

personally liable on the contracts so made.”34“This is true even though the

agent has disclosed a principal but has failed to disclose the true principal.”35

Texas law rejects Sanchez’s signing the 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.

31

Id. at 134.

32 See, e.g., Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 263-64 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied) (Frost, J., concurring); Am. Petrofina Co. of Tex.

v. Bryan, 519 S.W.2d 484, 486-87 (Tex. App.—El Paso 1975, no writ).

33 Carter v. Walton, 469 S.W.2d 462, 471 (Tex. App.—Corpus Christi 1971, writ ref’d

n.r.e.).

34

Id. (internal quotation marks omitted); see also Stacy v. Energy Mgmt. Grp. Ltd.,

Inc., 734 S.W.2d 149, 150 (Tex. App.—Houston [1st Dist.] 1987, no writ) (“[A]n agent who

executes a contract on behalf of a fictitious principal is also personally liable on the contract

for failure to accurately disclose his principal.”). 

35 Sw. Bell Media, Inc. v. Trepper, 784 S.W.2d 68, 71 (Tex. App.—Dallas 1989, no writ).

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