American Campus Communities, Inc. v. Beth Berry, Brooke Berry, Yael Spirer, and Hailey Hoppenstein, Individually and on Behalf of All Others Similarly Situated

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED SEPTEMBER 3, 2021

NO. 03-21-00119-CV

American Campus Communities, Inc. ; American Campus (PVAMU) Ltd.; American
Campus (PVAMU IV) Ltd.; ACC OP (PVAMU VI), LLC; ACC OP (PVAMU VII), LLC;
ACC OP (PVAMU VIII), LLC; American Campus (Laredo), Ltd.; American Campus (U
of H), Ltd.; ACC OP (West Abram), LLC; ACC OP (The Block), LLC; 22 1/2 Street
Partners, L.P.; Campus Investors Austin, LLC; Campus Investors Austin, LLC; ACC OP
(Pearl Street), LLC; ACC OP (Retreat Sm), LLC; ACC OP (Retreat Sm Land), LLC;
ACC OP (Sanctuary Lofts), LLC; ACC OP (Vistas San Marcos), LLC; ACC (Outpost San
Marcos), L.P.; Campus Investors Hrse-SC, LLC; American Campus Communities
Operating Partnership, L.P.; ACC (Outpost San Antonio), L.P.; ACC OP (West Campus),
LLC; ACC OP (Uta Blvd.), LLC; ACC OP (26 West), LLC; GMH/GF Denton Associates,
LLC; ACC OP (Cityparc), L.P.; Apkshv Lubbock, L.P.; ACC (Raiders Pass), L.P.;
Lubbock Two Associates, LLC; Lubbock Main Street Associates, LLC; ACC OP (Overton
Park), LLC; ACC OP (Tract 6), LLC; Sycamore Avenue Associates, LLC; ACC OP
(Tracts 32 and 33), LLC; ACC OP (Denton-Fry), LLC; SHP-The Callaway House, L.P.;
ACC OP (Callaway Villas), L.P.; ACC (Aggie Station), L.P.; ACC OP (Marion Pugh),
LLC; ACC OP (South College Avenue), LLC; Campus Investors Baylor, LLC; & ACC OP
(Speight Avenue), LLC, Appellants

v.

Beth Berry, Brooke Berry, Yael Spirer, and Hailey Hoppenstein,
Individually and on behalf of all others similarly situated, Appellees

APPEAL FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE BYRNE, JUSTICES BAKER AND SMITH
MODIFIED AND, AS MODIFIED, AFFIRMED -- OPINION BY JUSTICE BAKER

This is an appeal from the interlocutory order granting class certification signed by the trial court

on February 26, 2021. Having reviewed the record and the parties’ arguments, the Court holds
that there was no reversible error in the order, but that the trial court erred in certifying a

declaratory and injunctive claim as to appellants’ post-2018 leases. Therefore, the Court

modifies the trial court’s certification order to remove references to such claim, as indicated

below by strikethrough for deletions and underlining for corresponding grammatical corrections:

25. Although Defendants do not contest its their noncompliance with the
statutory mandate of Texas Property Code Section 92.056(g) prior to circulating
the “2018 Lease Addendum,.” Plaintiffs assert the Defendants remain non-
compliant with the statutory mandate of Texas Property Code Section 92.056(g).
Thus, there is a live and justiciable controversy at issue. Plaintiffs request relief
enumerating the existence of the statutory right to notice specifically in mandated
form, scope and availability of enforceability rights and remedies, and allowable
damages. Plaintiffs further seek findings regarding whether the 2018 Lease
Addendum and residential leasing agreements since March 2018 are is compliant
with Texas Property Code.

26. The Court grants certification pursuant to Rule 42(b)(2) to answer and
declare: (1) the existence of the statutory right to notice specifically in mandated
form, (2) applicability of the Anti-Waiver requirements under Sections 92.006,
(3) whether condition precedents are required to seeking judicial remedies,
(4) whether failure to provide the required notice in correct format affects past
and future reliance of on defenses and allowable damages. This certification
under Rule 42(b)(2) will provide binding findings declaring whether the 2018
Lease Addendum meets the disclosure requirements of Section 92.056(g); and
whether the 2018 Lease Addendum violates the Anti-Waiver provision of Section
92.006.; whether the ACC residential lease agreements since 2018 to the present
are compliant with § 92.006 and § 92.056(g); and (4) determine the
appropriateness of formal prohibition of continued use of residential leases that do
not contain the required statutory language in legislated format.

27. The Court finds that certification is appropriate to address claims seeking
declarations of whether residential leases, including the use of the 2018 Lease
Addendum, implicating an actual controversy regarding questions of construction
or validity, which will serve a useful purpose or will terminate the certain
controversies between the parties, including: (1) legal sufficiency of ACC’s 2018
Lease Addendum after testing compliance with Section 92.006(c) and/or Section
92.056(g); and (2) legal sufficiency of ACC’s 2018-current leasing agreements
after testing compliance with Section 92.006(c) and/or Section 92.056(g).

The Court affirms the interlocutory order as modified. Appellants shall pay all costs relating to

this appeal, both in this Court and in the court below.
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