(Shelby Circuit Court, CV-18-900702).
PETITION FOR WRIT OF MANDAMUS
J. Moore and L. Griffin Tyndall of Christian & Small LLP,
Birmingham, for Petitioners.
S. Williams , R. Ryan Daugherty , Meghan A. Salvati , and
Thomas A. Woodall of Sirote & Permutt, P.C., Birmingham,
for Respondents SouthFirst Bancshares, Inc., d/b/a SouthFirst
Bank, Mari Gunnels, and Danny Keeney.
J. Hurst of Hurst Law Firm, LLC, Birmingham, for Respondents
Southern Craftsman Custom Homes, Inc., and Jeffrey Rusert.
M. Curry, Sr., Respondent, pro se.
McDaniel and Lisa McDaniel, plaintiffs in a civil action
below, petition this Court for a writ of mandamus directing
the Shelby Circuit Court to vacate its order staying the
proceedings against the defendants—Southern Craftsman
Custom Homes, Inc. ("SCCH"); Jeffrey A. Rusert;
Larry M. Curry, Sr.; SouthFirst Bancshares, Inc., d/b/a
SouthFirst Bank ("SouthFirst"); Mari G. Gunnels;
and Danny Keeney—while one of those defendants,
Rusert, awaits the outcome of a federal criminal
investigation against him. For the reasons stated below, we
grant the petition and issue the writ.
and Procedural History
2017, the McDaniels contacted Rusert for the purpose of
entering into an agreement with SCCH to build a house.
According to the McDaniels, Rusert represented himself as the
president of SCCH. At some point, Rusert recommended that the
McDaniels speak with Gunnels, who worked for SouthFirst, to
secure a loan to pay for the construction of the new house.
In November 2017, with Gunnels's assistance, the
McDaniels began the process of applying for a construction
loan with SouthFirst.
November 4, 2017, the McDaniels and SCCH entered into a
written agreement for the construction of the house. The
total amount of the construction contract was $585,000.
Pursuant to the terms of the contract, the McDaniels paid 10
percent of the contract amount—$58,500—as a
down payment. The McDaniels contend that they made numerous
inquiries with Gunnels concerning the status of the approval
of their construction loan and questioned the delay in the
closing of the loan. According to the McDaniels, Gunnels
assured them that the delay in closing the loan was simply
the result of certain signatories for SouthFirst being out of
town that prevented SouthFirst from executing the appropriate
documents. The McDaniels contend, however, that the delay in
closing the loan was actually attributable to concerns
allegedly raised by Keeney, also a SouthFirst employee,
regarding Rusert's ability to perform the work designated
in the construction contract.
delay in closing of the loan allegedly led Rusert to seek
additional funds from the McDaniels to "hold 2017
material prices." In December 2017, the McDaniels paid
Rusert an additional $15,000 to satisfy that request.
point, the McDaniels learned that another person, Curry, had
signed another copy of the construction contract between SCCH
and the McDaniels to replace the construction contract
previously executed by Rusert. SouthFirst indicated to them
that Curry was the president of SCCH and that he, not Rusert,
held the builder's license for the company. According to
the McDaniels, Rusert's license to perform homebuilding
services had been revoked, and SouthFirst had encountered
prior issues with SCCH and Rusert's defaulting on other
loan closing occurred on January 26, 2018. The McDaniels
executed, among other agreements, a written construction-loan
agreement, a promissory note, and a construction-loan
disbursement agreement in the total amount of $589,500 for
the construction of their house. In conjunction with the
execution of those agreements, the McDaniels executed a
mortgage on the property in favor of SouthFirst. At the loan
closing, Rusert was given a "start-up draw" in the
amount of $29,843.65. Subsequently, SouthFirst funded three
additional draw requests from Rusert.
March 5, 2018, the McDaniels met with Rusert at the property
site to discuss some concerns they had with the ongoing
construction. During that meeting, Rusert provided the
McDaniels with a credit application from a local
building-supply company and asked them to execute it so that,
he said, he could use the McDaniels' credit to purchase
building materials and supplies. The McDaniels contacted that
local building-supply company and learned that it refused to
do business with SCCH, Rusert, and Curry because all three
had purportedly failed to pay significant amounts owed the
company. The McDaniels immediately ...